Tran v Minister for Immigration & Anor
[2019] FCCA 2859
•11 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2859 |
| Catchwords: MIGRATION –Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Prospective Marriage (Temporary) (class TO) visa – whether Tribunal applied arbitrary standards of conduct when determining whether the parties had a genuine intention to marry and to live together – whether the Tribunal’s findings the parties had no such genuine intention were otherwise legally unreasonable. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3 Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15A; Schedule 2, cll.300.111, 300.211, 300.215, 300.216, 300.221, 300.511 |
| Cases cited: BWC16 v Minister for Home Affairs [2018] FCA 1375 Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZLSP [2012] FCA 451 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 SZLSP v Minister for Immigration and Citizenship [2012] FCA 451 |
| Applicant: | TRUNG NINH TRAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1919 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 October 2019 |
| Date of Last Submission: | 2 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Vietaust Lawyers |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1919 of 2017
| TRUNG NINH TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) raises two questions. The first is whether the second respondent (Tribunal) applied arbitrary standards of behaviour when affirming the decision of a delegate of the first respondent (Minister) not to grant to Ms Nguyen, a citizen of Vietnam, a Prospective Marriage (Temporary) (class TO) visa (PM visa). The second question is whether the Tribunal made findings that were otherwise legally unreasonable.
To be in a position to consider these questions, it will be necessary to identify some of the criteria an applicant for a PM visa must satisfy before he or she can be granted such visa, and then to set out the evidence that was before the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision.
Relevant criteria
Ms Nguyen and her son applied for a PM visa on 24 June 2015. To have been entitled to a PM visa Ms Nguyen was required to satisfy the criteria prescribed by subclass 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to the application before me are the following criteria:
300.21—Criteria to be satisfied at time of application
300.211
The applicant intends to marry a person who is:
(a) an Australian citizen
. . . .
300.215
The applicant establishes:
(a) that the parties genuinely intend to marry; and
(b) that the marriage is intended by the parties to take place within the visa period.
300.216
The Minister is satisfied that the parties genuinely intend to live together as spouses.
. . . .
300.221
The applicant continues to satisfy the criteria in clause 300.211 and clauses 300.214 to 300.216.
The expression “visa period” is the period referred to in cl.300.511 of Schedule 2 to the Regulations:
300.5 – When visa was in effect
300.511
Temporary visa permitting the holder to travel to, enter and remain in Australia for 9 months from date of grant.
The expression “the parties” is defined in cl.300.111 of Schedule 2 to the Regulations to mean “the applicant and the prospective spouse”. “Prospective spouse” is defined in the same clause as, among other persons, “the Australian citizen . . . . referred to in clause 300.211”. Also relevant is reg.1.15A of the Regulations, which was made under s.5F(2) of the Act. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act, persons are in a “married relationship” if:
a)they are married to each other under a marriage that is valid for the purposes of this Act; and
b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
c)the relationship between them is genuine and continuing; and
d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. Subregulation 1.15A(2) of the Regulations provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
Subregulation 1.15A(4) of the Regulations provides that if the Minister is considering an application for a visa of a class other than a class mentioned in reg.1.15A(2), the Minister “may consider any of the circumstances mentioned in subregulation (3)”.
The application for a PM visa
In her application for a PM visa Ms Nguyen claimed she intended to marry Mr Tran, the applicant in the proceeding before me. Mr Tran is an Australian citizen of Vietnamese descent. Ms Nguyen supported her application with statements she and Mr Tran each made, and with statutory declarations made by each of Mr Tran’s father,[1] and Ms Nguyen’s auntie.[2]
[1] CB30-31
[2] CB28-29
In her statement, Ms Nguyen said as follows:[3]
a)Ms Nguyen has a son, but she became pregnant as a result of a person’s taking advantage of her, and with whom Ms Nguyen did not form any relationship.
b)Ms Nguyen’s auntie decided to find a boyfriend for Ms Nguyen because Ms Nguyen was a single mother, and she did not have a boyfriend.
c)In the beginning of 2014 Ms Nguyen’s auntie told her that Mr Tran is Ms Nguyen’s age, and he had never had a girlfriend because Mr Tran had been in and out of gaol. Ms Nguyen’s auntie told her that Mr Tran’s father is a family friend who had been renting a room from her Auntie for around 5 years; during that period her Auntie had come to know Mr Tran every time he came to visit his father; Ms Nguyen’s auntie found Mr Tran to be kind and quiet; he is rehabilitated; he is sober; he has been working for a few years; he is living a normal and lonely life; and that Mr Tran was in a similar situation as Ms Nguyen in that it would be difficult for Mr Tran to find a girlfriend. After listening to her auntie, Ms Nguyen said she “accepted what she said in hope that I could find a man to share the rest of my life with”.
d)Around the beginning of April 2014 Ms Nguyen received a call from Mr Tran. He said he wanted to find a girlfriend, he wanted to get to know Ms Nguyen and, if they were compatible ,“we will then take our relationship further”. Mr Tran called Ms Nguyen occasionally as a result of which Ms Nguyen began to feel younger and more confident, and her feelings for Mr Tran grew stronger by the day. A few weeks later Mr Tran told Ms Nguyen he wanted to be her boyfriend, but believed they should first meet in person before they could decide on whether their relationship should be long term. A short time later, Mr Tran informed Ms Nguyen that he and his father would travel to Vietnam.
e)On 11 June 2014 Mr Tran and his father visited Vietnam. They stayed at the house of an uncle of Ms Nguyen. Ms Nguyen and Mr Tran saw each other every day. Mr Tran and his father met Ms Nguyen’s family. Mr Tran returned to Australia on 26 June 2014.
f)After his return to Australia, Ms Nguyen and Mr Tran often talked to each other over the telephone. Mr Tran sent money to Ms Nguyen and her son. Ms Nguyen told Mr Tran, however, not to send her money because she can take care of her son, but Mr Tran continued to send money.
g)On 4 January 2015 Mr Tran telephoned Ms Nguyen to wish her happy birthday. He also proposed marriage to her. After this conversation Ms Nguyen and Mr Tran informed their families. Mr Tran’s family contacted Ms Nguyen’s family to discuss their marriage. Everyone agreed she and Mr Tran would get engaged in Vietnam, and then marry in Australia. On 27 March 2015 Ms Nguyen and Mr Tran were engaged, and an engagement ceremony and reception were held at Ms Nguyen’s home.
h)Once Ms Nguyen is allowed to reunite with Mr Tran in Australia they will marry. Ms Nguyen is currently a kitchen hand and Mr Tran is currently working full-time in carpentry. Ms Nguyen and Mr Tran will try their best to save up and purchase a house. Ms Nguyen and Mr Tran “also discussed about children matter and decided to have a child together as soon as possible”.
[3] CB32-34
Ms Nguyen did not disclose in her statement or anywhere else in her application that she had applied in 1997 for a PM visa on the basis of her relationship with a Mr Le. The delegate’s decision records the following:[4]
The applicant [Ms Nguyen] declared that this is her first relationship. The applicant at interview also confirmed that she did not have any previous boyfriend, fiancé, marriage and de facto relationship. However, departmental systems show that the applicant was sponsored on a prospective marriage visa by LE . . . in 1997, which was not declared both in the application form and/or at the interview. When this information was presented to the applicant at interview, the applicant admitted the information. . . .
[4] CB254
Mr Tran, in his statement,[5] gave evidence that was consistent with Ms Nguyen’s statement. Mr Tran stated that he and Ms Nguyen intend to get married on 12 December 2015 in Australia. Mr Tran said he and Ms Nguyen want to have their own child as soon as possible “as we are not young anymore”.
[5] CB39-41
Tribunal’s reasons
The Tribunal accepted that at the time Ms Nguyen applied for the PM visa she and Mr Tran had met, and are known to each other personally.[6] The Tribunal, however, was not satisfied at the time of application Ms Nguyen and Mr Tran had a genuine intention to marry. The Tribunal based this finding after “having regard to all of the evidence before it, in particular the very vague evidence about their plans”.[7] The evidence to which the Tribunal may reasonably be taken to have intended to refer is the following:
a)The oral evidence Mr Tran gave before the Tribunal which, although generally consistent, was “frequently hesitant, internally contradictory and vague”.[8]
b)Mr Tran’s extensive criminal history, including his evidence that he has spent more than 10 years in prison, that he had committed almost 50 offences between 1989 and 2012, and that some of those offences involved dishonesty.[9]
c)Evidence given by Mr Tran’s father that Mr Tran would be unable to find a partner in Australia because of his criminal convictions, and that Ms Nguyen was in a difficult position because someone had taken advantage of her. The Tribunal found unpersuasive the contention that Mr Tran would find it easier to find a suitable partner in Vietnam than in Australia because of his criminal convictions.[10]
d)Discrepancies the Tribunal found between the evidence Mr Tran gave and evidence his father gave about the sleeping arrangements when Mr Tran and his father visited Vietnam in 2014.[11]
e)Mr Tran’s evidence that “the parties intended to marry within a year or two after the visa is granted”; he has not approached a marriage celebrant, and the parties have not discussed any details of the marriage; Ms Nguyen and Mr Tran will have a child together, and Ms Nguyen will undertake English classes before they marry; and Mr Tran and Ms Nguyen had not discussed whether they will have a honeymoon or if any family members will travel to Australia from Vietnam for their wedding.[12]
f)The oral evidence Ms Nguyen gave that she and Mr Tran will make decisions about the marriage after she arrives in Australia.[13]
[6] CB343, [19]
[7] CB343, [22]
[8] CB342, [13]
[9] CB342, [14]
[10] CB342, [15]
[11] CB342-343, [16]-[18]
[12] CB343, [21]
[13] CB343, [21]
The Tribunal was not satisfied that at the time of application, or at the time of decision, Mr Tran and Ms Nguyen intended to live together as spouses.[14] The Tribunal relied on the following evidence and findings:
[14] CB345, [35]
a)Mr Tran and Ms Nguyen do not have any joint assets or debts, although the Tribunal accepted that Mr Tran had sent some money to Ms Nguyen to help her meet her daily living expenses, and the parties were able to demonstrate a reasonable understanding of each other’s income and employment.[15]
b)Mr Tran gave oral evidence that he and his father stayed with Ms Nguyen’s uncle when he went to Vietnam in 2014, but he could not remember the name of the uncle.[16]
c)Given the discrepancies in the oral evidence regarding the sleeping arrangements of the members of the household during Mr Tran’s visit to Vietnam, the Tribunal was not prepared to accept Mr Tran and Ms Nguyen lived in the same household as they claimed.[17]
d)The Tribunal accepted there had been some social recognition of the parties’ relationship with their immediate families and some close friends.[18]
e)The Tribunal accepted Mr Tran and Ms Nguyen are in regular contact; Mr Tran was aware Ms Nguyen had worked in Taiwan for around a year when her son was young and that her mother cared for her son; Ms Nguyen had some knowledge of Mr Tran’s personal history; and the parties demonstrated a reasonable understanding of the names and personal details of each other’s family members.[19]
f)The “parties’ oral evidence about their plans for their future life together was vague and unpersuasive, in particular regarding” Ms Nguyen’s son. Mr Tran said Ms Nguyen’s son will attend a small school in the local neighbourhood; he was unable to remember the name of the school, and said he had made no enquiries about enrolling Ms Nguyen’s son. hen asked about the school, Mr Tran conceded it was a primary school, and as Ms Nguyen’s son is 14 years of age, he will be attending high school. The Tribunal was “troubled that Mr Tran had apparently given little thought to Mrs [sic] Nguyen’s son’s education prior to the hearing”. [20]
g)Mr Tran said the parties wished to have a child together but “they have not discussed this in the context of Mrs [sic] Nguyen’s age (42 years)”.[21]
h)Mr Tran’s evidence is that he has spent around 12 days in Vietnam in the past two years; Mr Tran has been sending money to Ms Nguyen at reasonably regular intervals despite Ms Nguyen’s oral evidence that she had told Mr Tran she is able to earn a sufficient income from her own employment to support herself and her son; and Mr Tran gave oral evidence that he has around $2,000 in savings and that his employment is casual. In those circumstances, the Tribunal said it “would have expected Mr Tran to have spent more time with Mrs [sic] Nguyen given they have been engaged for more than two years”, and that although “his income is modest, the Tribunal considers that Mr Tran has some capacity to travel to Vietnam to spend time with Mrs [sic] Nguyen”.[22]
i)The Tribunal placed weight on Ms Nguyen’s failure to disclose her relationship with Mr Le. Ms Nguyen gave oral evidence at the hearing that she simply forgot about the relationship.[23]
j)There was limited independent evidence that Ms Nguyen and Mr Tran provide each other with companionship and emotional support such as might be expected of a couple in a prospective spousal relationship.[24]
[15] CB344, [25]
[16] CB344, [26]
[17] CB344, [26]
[18] CB344, [27]
[19] CB344, [28]
[20] CB344-345, [29]
[21] CB345, [29]
[22] CB345, [30]
[23] CB345, [32]
[24] CB345, [34]
Ground of application
Mr Tran relies on the one ground contained in the amended application, which is as follows:
The Tribunal made a jurisdictional error of legal unreasonableness in making findings of fact as to genuineness for the purposes of cl 300.215, 300.216 and 300.221 of Sch 2 to the Migration Regulations 1994 (Cth).
a.It is settled that the Tribunal will make a jurisdictional error where it makes material findings of fact which are legally unreasonable, in the sense that they lack an evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82]).
b.As part of the law of legal unreasonableness, the Tribunal has been held to make a jurisdictional error where it imposes an arbitrary standard of knowledge upon a person with respect to religion or political activity (BWC16 v Minister for Home Affairs [2018] FCA 1375 at [51], [55], [59]).
c.The Tribunal must likewise not impose an arbitrary standard of behaviour in relation to the conduct of a relationship which is intended to be marital.
d.The Tribunal made legally unreasonable findings of fact or imposed arbitrary standards of behaviour at paragraphs 21-22 and 29-30 of its decision.
Parties’ submissions
Mr Tran makes two claims, both contained in paragraph (d) of the particulars to the ground of application. The first is that the Tribunal imposed or applied arbitrary standards of behaviour in finding it was not satisfied that Ms Nguyen and Mr Tran had a genuine intention to marry,[25] or a genuine intention to live together as spouses.[26] The second claim is that, even if the Tribunal did not impose arbitrary standards of behaviour in finding it was not satisfied Ms Nguyen and Mr Tran had a genuine intention to marry or to live together as spouses, those findings were legally unreasonable. Mr Tran’s counsel’s written and oral submissions were directed almost exclusively to the first of these two claims.
[25] CB343, [22]
[26] CB345, [35]
Mr Tran’s submissions in relation to the first claim may be summarised as follows:
a)The Federal Court and the Full Federal Court have held the Tribunal will make a jurisdictional error if it assesses an applicant’s knowledge about a system of religion by reference to an “arbitrary standard of knowledge”.[27]
b)The principle referred to in (a) has been applied when assessing a person’s knowledge about subjects other than religion. In particular it has been applied to a person’s knowledge of the principles and history of a political party,[28] and to a person’s political opinions.[29]
c)The principle referred to in (a) applies by analogy to the assessment of a person’s conduct. That is, the Tribunal will make a jurisdictional error if it assesses an applicant’s conduct by reference to an arbitrary standard of conduct.
d)The Tribunal assessed Ms Nguyen’s and Mr Tran’s conduct by reference to arbitrary standards of conduct. In particular, the Tribunal applied the following arbitrary standards:
i)Persons who are planning a wedding should or would discuss plans for a marriage celebrant, a wedding ceremony, and a honeymoon.[30] The basis of Mr Tran’s submission the Tribunal applied this standard of conduct is the Tribunal’s relying on Ms Nguyen and Mr Tran not having approached a marriage celebrant, and their not having discussed any details of their marriage, or about whether they will have a honeymoon.[31] The standard the Tribunal applied is arbitrary because it is consistent with parties having a genuine intention to marry to leave the discussion and arrangement of such matters to a later date.[32]
ii)Parties who genuinely intend to live together would discuss or consider plans in relation the education of the child of one of the parties.[33] The basis of Mr Tran’s submission the Tribunal applied this arbitrary standard of conduct is the Tribunal’s relying on evidence Mr Tran had given about his knowledge or understanding of the education that would be arranged for Ms Nguyen’s son, and the Tribunal’s being troubled by Mr Tran’s having apparently given little thought to Ms Nguyen’s son’s education. The standard the Tribunal applied is arbitrary because it was not necessary for the parties to have discussed or considered the education of the child of one of the parties.[34]
iii)Parties who genuinely intend to live together and plan to have a child in circumstances where the female partner is nearing the end of the average childbearing age, would discuss that plan in the context of the female being near the end of her childbearing age.[35] The basis of Mr Tran’s submission the Tribunal applied this standard of conduct is the Tribunal’s relying on its finding that Ms Nguyen and Mr Tran did not discuss their intention of having a child together in the context of Ms Nguyen’s age (she was then 42 years old).[36] The standard the Tribunal applied is arbitrary because it was not necessary, or inconsistent with the desire to have further children, for the parties not to have discussed the question of the advanced age of the prospective mother.[37]
iv)An Australian citizen who genuinely intends to live in Australia with a person who lives in another country would travel to the foreign country to see the other person more than on one occasion over two years, if the Australian citizen has the means to do so.[38] The basis of Mr Tran’s submission the Tribunal applied this standard of conduct is the Tribunal’s relying on its finding that it would have expected Mr Tran to have spent more time with Ms Nguyen in Vietnam, given they have been engaged for more than two years, and that, although his income is modest, Mr Tran has some capacity to travel to Vietnam.[39] The standard the Tribunal applied was arbitrary because it was not necessary that Mr Tran visit Ms Nguyen more than he did.[40]
[27] See, for example, SZLSP v Minister for Immigration and Citizenship [2012] FCA 451; Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
[28] BWC16 v Minister for Home Affairs [2018] 1375, at [55];
[29] MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
[30] Applicant’s Proposed Amended Submissions, [5]
[31] CB343, [21]
[32] Applicant’s Proposed Amended Submissions, [5]
[33] Applicant’s Proposed Amended Submissions, [6]
[34] CB344-345, [29]
[35] Applicant’s Proposed Amended Submissions, [6]
[36] CB344-345, [29]
[37] Applicant’s Proposed Amended Submissions, [6]
[38] Applicant’s Proposed Amended Submissions, [7]
[39] CB345, [30]
[40] Applicant’s Proposed Amended Submissions, [7]
Counsel for the Minister submitted that the principle concerning the assessment of religious beliefs which Mr Tran contends applies by analogy to the assessment of conduct is not relevant to the circumstances of this case. Counsel submitted that the Tribunal in the case before me was not required to, and did not, address an open-ended question about matters analogous to a person’s religious and political beliefs. The Tribunal, as it was required to do, instead directed its attention to considering whether Ms Nguyen and Mr Tran satisfied two of the criteria for the grant of a PM visa, namely, whether they genuinely intended to marry and whether they genuinely intended to live together. Counsel further submitted the Tribunal’s findings were reasonably open to it for the reasons it gave.
Did the Tribunal apply arbitrary standards?
Before I consider Mr Tran’s submissions on this part of his case, it would be useful first to consider the nature of the jurisdictional error he claims the Tribunal made.
Characterisation of the claimed jurisdictional error
As I have already noted, Mr Tran relies on cases that have held that the Tribunal will make a jurisdictional error if it applies arbitrary standards of knowledge to assess the genuineness of a person’s stated religious and other beliefs or opinions. Thawley J reviewed some of the authorities in BWC16 v Minister for Home Affairs.[41] His Honour first referred to the judgment of Kenny J in Minister for Immigration and Citizenship v SZLSP,[42] noting that her Honour addressed the question whether jurisdictional error might arise in applying an “arbitrary standard” of knowledge of which a person must have to be found to be a follower of a religion; and then to the Full Federal Court’s judgment in Minister for Immigration and Citizenship v SZOCT.[43] His Honour then set out[44] a passage from the judgment of Jacobson J which included the following:[45]
First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion . . . .
Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal . . .
Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know . . .
Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one . . . . The principle which appears to follow from the Full Court authorities, and from recent High Court authority . . . is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
[41] [2018] FCA 1375
[42] [2012] FCA 451
[43] [2010] FCAFC 159
[44] [2018] FCA 1375, at [51]
[45] Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159, at [7]-[10] (references omitted)
The cases on which Mr Tran relies have not held there is a distinct ground of jurisdictional error relating to the assessment of whether a person holds a particular religious or political belief or opinion. The cases rely on the broader category of jurisdictional error based on the Tribunal’s making findings in the absence of an evidential, rational, or reasonable foundation. That is how Thawley J characterised the jurisdictional error his Honour found the Immigration Assessment Authority made in BWC16:[46]
[46] BWC16 v Minister for Home Affairs [2018] FCA 1375, at [57] [58]
The Authority’s decision was affected by jurisdictional error. First, it found as a fact that the appellant had stated he was unaware of the TULF party’s history. He did not. The making of a critical finding of fact without probative evidence can give rise to jurisdictional error. Here the finding of fact was sufficiently material to result in the Authority’s decision being affected by jurisdictional error.
This error can be characterised in other ways:
(1)a critical or dispositive finding of fact which is unsupported by probative material may be characterised as involving reasoning which is irrational or illogical such as to give rise to jurisdictional error in the way contemplated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] . . . .
The proper characterisation of the jurisdictional error Mr Tran claims the Tribunal made, therefore, is that, in finding Mr Tran and Ms Nguyen did not have a genuine intention to marry, or a genuine intention to live together, it relied on facts or assumptions for which there was no evidential, or rational, or reasonable foundation, those facts and assumptions being the standards I have set out in paragraph 16(d) of these reasons (assumed facts). Two questions, therefore, arise. Did the Tribunal rely on the assumed facts? If so, was there an evidential, or rational, or reasonable foundation for the assumed facts?
Did the Tribunal rely on the assumed facts?
Mr Tran does not submit the Tribunal expressly articulated or relied on the assumed facts. That means Mr Tran should be taken to submit that the Tribunal’s assuming the existence of, and its reliance on, the assumed facts are to be implied from the inferences the Tribunal drew on the basis of particular items of evidence it considered. The first question to consider is whether it is permissible to infer from the findings the Tribunal made on the basis of particular items of evidence that it assumed and relied on the assumed facts.
It has been recognised by commentators that when drawing an inference from a particular item of evidence or from a particular finding of fact a fact-finder relies on at least one assumed generalisation. Because of the ubiquity of this practice, and the availability of a ground of jurisdictional error based on the absence of evidentiary, rational, or reasonable support, which might suggest that an administrative decision-maker’s reliance on unstated and unproven generalisations may ground a finding of jurisdictional error, it would be useful to refer to what some commentators have said about the practice.
A useful starting point is Wigmore. In his treatise on evidence Wigmore considered the form of argument fact-finders employ when drawing an inference from a particular item of evidence or finding of fact. [47] Wigmore said that every inference drawn on evidence adduced in a litigious setting is “inductive” in form – by which he meant that a fact-finder expressly infers a fact directly from a particular piece of evidence or from a particular finding. He gives the example: “A planned to kill B; therefore, A probably did kill B”. Wigmore recognised, however, that the inductive form of argument “is implicitly based upon an understood law or generalization and is thus capable of being expressed in the deductive or syllogistic form”.[48] Thus, the inductive form of argument: “A planned to kill B; therefore, A probably did kill B” may be expressed in a deductive or syllogistic form: “Men’s fixed designs are probably carried out; A had a fixed design to kill B; therefore, A probably carried out his design and did kill B”.[49]
[47] J H Wigmore, Evidence in Trials at Common Law, Peter Tillers rev,Little Brown & Company, Boston, 1983, Vol 1A §30, pages 982-988
[48] J H Wigmore, Evidence in Trials at Common Law, Peter Tillers rev,Little Brown & Company, Boston, 1983, Vol 1A §30, page 985
[49] J H Wigmore, Evidence in Trials at Common Law, Peter Tillers rev,Little Brown & Company, Boston, 1983, Vol 1A §30, page 985
That a fact-finder relies on unproven generalisations when drawing inferences on the basis of evidence has been recognised by others. Thus, Anderson observed that “[e]very inference is dependent upon a generalization. The inductive form of an inference can be converted to a quasi-deductive form by identifying and articulating the generalisation upon which it depends”.[50] And Twining said:[51]
Mainstream evidence theory gives a central place to the role of generalizations in “rational” fact determination. Every inferential step from particular evidence to particular conclusions – from factum probans to factum probandum – requires justification by reference to at least one background generalization. In David Schum’s phrase, generalizations constitute the “glue” of inferential reasoning.
[50] Terence J Anderson, “On Generalizations I: A Preliminary Exploration” (1999) 40 S. Tex. Rev. 455, at page 455
[51] William Twining, “Narrative and Generalizations in Argumentation about Questions of Fact” (1999) 40 S. Tex. Rev. 351, at page 356
Also illuminating is what the philosopher L Jonathan Cohen has said about the use of background generalisations by a “juryman” (for which “fact-finder” may be substituted) (emphasis added):[52]
[W]hen a juryman takes up his office his mind is already adult and stocked with a vast number of commonplace generalizations about human acts, attitudes, intentions, etc., about the more familiar features of the human environment, and about the interactions between these two kinds of factor, together with an awareness of many of the kinds of circumstances that are favourable or unfavourable to the application of each such generalization. Without this stock of information in everyday life he could understand very little about his neighbours, his colleagues, his business competitors, or his wife. He would be greatly handicapped in explaining their past actions or predicting their future ones. But with this information he has the only kind of background data he needs in practice for the assessment of inductive probabilities in the jury-room. He does not need to have tacitly ingested a mass of quantitative or numerical statistics for this purpose. Nor does he need implicitly to remember some sophisticated mathematical algorithm in order to compute the probabilities from the data. The inductive probability of the proposed conclusion on the facts before the court depends just on the extent to which the facts are favourable to some commonplace generalizations that connect them to the conclusion.
[52] L Jonathan Cohen The Probable and the Provable, Clarendon Press, Oxford, 1977, at pages 274-275
The extent to which courts have relied on unproven generalisations is documented by Heydon in Cross on Evidence.[53] Heydon said: [54]
Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used . . . . It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life. . . . . This general common experience of life causes the minds of courts to be full of many generalisations – right or wrong, crude or subtle, useful or misleading – about the behaviour of humans and about the physical and social world they inhabit.
[53] Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths, at [3200] -[3290]
[54] Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths, at [3200]
Although these passages refer to the drawing of inferences in litigation, they apply equally to the drawing of inferences based on evidence in any setting in which a decision-maker is required to make findings of fact based on evidence.
I turn to the question, then, of whether the Tribunal assumed and relied on the assumed facts. The assumed facts on which Mr Tran submits the Tribunal relied are expressed in unqualified terms. That is, Mr Tran submits the Tribunal relied on generalisations to the effect that all persons who are planning a wedding should or would discuss plans for a marriage celebrant, a wedding ceremony, and a honeymoon;[55] that all parties who genuinely intend to live together would discuss plans in relation to, or consider the education of, the child of one of the parties;[56] that all parties who genuinely intend to live together and plan to have a child, and the female partner is nearing the end of the average childbearing age, would discuss that plan in the context of the women being near the end of her childbearing age;[57] or that every Australian citizen who genuinely intends to live in Australia with a person who lives in another country would travel to the foreign country to see the other person more than on one occasion over two years, provided the Australian citizen had the means to do so.[58]
[55] Applicant’s Proposed Amended Submissions, [5]
[56] Applicant’s Proposed Amended Submissions, [6]
[57] Applicant’s Proposed Amended Submissions, [6]
[58] Applicant’s Proposed Amended Submissions, [7]
That Mr Tran submits the Tribunal adopted and applied the assumed facts in these unqualified terms is apparent from the grounds on which, in his written submissions, Mr Tran submits each of the assumed facts on which the Tribunal relied was arbitrary.
a)The assumption that persons who are planning a wedding should or would discuss plans for a marriage celebrant, a wedding ceremony, and a honeymoon was arbitrary because it is consistent with parties having a genuine intention to marry for the parties to leave discussion and arrangement of such matters to a later date.[59] In other words, Mr Tran submits this assumption is arbitrary because some parties who do genuinely intend to marry propose to discuss these matters at a later time.
b)The assumption that parties who genuinely intend to live together would discuss plans in relation to, or consider the education of, the child of one of the parties is arbitrary because it was not necessary for the parties to have discussed or considered the education of the child of one of the parties.[60] That implies Mr Tran submits the Tribunal assumed that parties who intended to live together would necessarily discuss plans for the education of the child of one of the parties.
c)The assumption that parties who genuinely intend to live together and plan to have a child, where the female partner is nearing the end of the average childbearing age, would discuss that plan in the context of the female being near the end of her childbearing age was arbitrary because it was not necessary, or inconsistent with the desire to have further children, for the parties to have discussed the question of the advanced age of the prospective mother.[61] This, too, implies Mr Tran submits the Tribunal assumed that parties who intended to live together would, in their discussion about having children, necessarily refer to the childbearing age of the female partner.
d)The assumption that an Australian citizen who genuinely intends to live in Australia with a person who lives in another country would travel to the foreign country to see the other person more than on one occasion over two years, if the Australian citizen has the means to do so, was arbitrary because it was not necessary that Mr Tran visit Ms Nguyen more than he did.[62] That implies Mr Tran submits the Tribunal assumed that a person in the position of Mr Tran would necessarily have visited Ms Nguyen in Vietnam on more than the one occasion he did visit her.
[59] Applicant’s Proposed Amended Submissions, [5]
[60] CB344-345, [29]
[61] Applicant’s Proposed Amended Submissions, [6]
[62] Applicant’s Proposed Amended Submissions, [7]
I accept the Tribunal relied on assumed generalisations to the effect of the assumed facts. I do not accept, however, that the Tribunal adopted or applied the generalisations in the unqualified manner Mr Tran submits it did. That is, I do not accept the Tribunal proceeded on the basis that the assumed facts applied to every person who genuinely intended to marry and live together. The Tribunal relied on generalisations – matters the Tribunal assumed were true in general. The Tribunal proceeded on the basis that the assumed facts were true for most persons who genuinely intend to marry and live together. Stated another way, the Tribunal proceeded on the basis that the assumed generalisations were probably true. Had the Tribunal in truth proceeded on the basis that the assumed facts applied to every person who had a genuine intention to marry and live with another person – that is, had the Tribunal proceeded on the basis that the assumed facts were certainly true – it would simply have applied as a major premise any one of the assumed facts to the evidence it identified that fell within the scope of the major premise and conclude that Mr Tran and Ms Nguyen did not genuinely intend to marry and live together. The Tribunal, however, did not proceed on this basis. It referred to and relied on other evidence.
Evidential, or rational, or reasonable support for the assumed generalisations?
Although I have not accepted Mr Tran’s submission that the Tribunal proceeded on the basis that the assumed facts were true for all persons who genuinely intend to marry or live together, I have found that the Tribunal relied on assumed generalisations to the effect that the assumed facts were probably, but not necessarily, true; and, given the Tribunal relied on assumed generalisations, it follows it did not consider whether there was any evidentiary support for the generalisations on which it relied. The question that arises, then, is whether the Tribunal committed any jurisdictional error by relying on the assumed generalisations.
That the Tribunal did not expressly identify the assumed generalisations on which it relied, and did not, therefore, consider whether there was any evidence to support them, does not mean the Tribunal made a jurisdictional error because it relied on assumptions for which there was no evidence. As I have shown, it is accepted that when drawing inferences on the basis of evidence a fact-finder relies on assumed generalisations. What must be addressed is whether the assumed generalisations on which the Tribunal relied were reasonable; and that is to be determined by considering whether the generalisations on which the Tribunal relied could reasonably be said to form part of an ordinary person’s stock of “commonplace generalizations about human acts, attitudes, intentions, etc., about the more familiar features of the human environment, and about the interactions between these two kinds of factor, together with an awareness of many of the kinds of circumstances that are favourable or unfavourable to the application of each such generalization”.[63]
[63] L Jonathan Cohen The Probable and the Provable, Clarendon Press, Oxford, 1977, at page 274
It was reasonably open to the Tribunal to rely on the generalisation that most parties who are planning a wedding would discuss plans for a marriage celebrant and a wedding ceremony. Many people are not married; but most will have had direct involvement in the marriages of others – relatives and friends. Marriage, therefore, is a widespread social phenomenon to which most people have been exposed. Through that exposure, most people would be aware that the act of marriage is often manifested by some public ceremony and celebration. They would also be aware that the publicity attaching to marriage is not restricted to the ceremony and the celebrations that follow it; publicity surrounds a couple’s intention to marry, often from the day on which the parties agree to marry. Couples that have agreed to marry share their news with relatives and friends; they discuss between themselves the day on which the public ceremony and celebrations should take place; they discuss plans about the nature of the ceremony by which they will be married; they also discuss whether they will celebrate their marriage and if so how, and who will be invited. These discussions are often shared with relatives and friends; and after they have been finalised, the outcomes of the plans are communicated to relatives and friends.
This is not to say that every couple that intends to marry manifest their intention in these ways. It is within common experience that some couples do not want any publicity attached to their marriage; they are content with marking their marriage by complying with the bare requirements of the law governing the entering into of a valid marriage, or by getting married in a place away from relatives and friends. But even here it is within common experience that such couples would discuss how and when they intend to marry. In any event, it is within the common experience that most couples that intend to marry manifest their intention publicly, and discuss between themselves plans for the ceremony of marriage and the subsequent celebration of their marriage.
The probability of the truth of the generalisation that most couples who intend to marry would also discuss plans about their honeymoon might be considered to be less than the probability of the truth of the generalisations that couples who intend to marry discuss their plans for the wedding ceremony and wedding celebration; and that is because it is within ordinary common experience that many couples decide to marry without deciding also to have a honeymoon. In my opinion, however, it would have been open to the Tribunal to consider that it is within ordinary experience that, although many couples who plan a wedding and a celebration do not also decide to have a honeymoon, the taking of a honeymoon is a sufficiently frequent consequence of a couple’s marrying, and celebrating their marriage, that it was reasonable for the Tribunal to assume as a generalisation that most couples who intend to marry, would also discuss their taking a honeymoon, although the proportion of couples who would plan a honeymoon would be fewer than the proportion of couples who would discuss plans about their wedding ceremony and the celebration of their wedding.
The second generalisation on which the Tribunal relied – that parties who genuinely intend to live together would discuss plans in relation to, or consider the education of, the child of one of the parties – is one that may also reasonably be taken to form part of an ordinary person’s stock of commonplace generalisations. It is within the ordinary person’s experience to encounter couples that intend to live, and who live in a spousal relationship. That phenomenon is not restricted to couples that have not been in a previous relationship. It is within most ordinary persons’ experience to have encountered or heard of persons who had been in a previous relationship, including a relationship that resulted in one or both of the parties having had children, that intend to live and do live together. It is within common experience that such couples discuss arrangements concerning their children. The discussions would include such essential matters as the arrangements for the education of the children.
The third generalisation on which the Tribunal relied – that a couple who intend to live together and plan to have a child, and where the female partner is nearing the end of the average childbearing age, would discuss that plan in the context of the female being near the end of her childbearing age – is one that may also reasonably be taken to form part of an ordinary person’s stock of commonplace generalisations. It is within the common person’s experience that a female has a childbearing age, and that a female’s being 42 years of age is towards the end of the average childbearing rage. In those circumstances, it is reasonable to infer, as the Tribunal did, that most couples where the female was nearing the end of the average childbearing age, who intend to have a child together, would give thought to the age of the female and consider the time the female had available to be in a position to conceive.
The fourth generalisation on which the Tribunal relied is that an Australian citizen who genuinely intends to live in Australia with a person who lives in another country would travel to the foreign country to see the other person more than on one occasion over two years, if the Australian citizen has the means to do so. Whether this generalisation may reasonably be considered to fall within the ordinary person’s stock of commonplace generalisations must be considered in the particular circumstances of the case that was before the Tribunal. Ms Nguyen and Mr Tran claim they love each other. They did not claim they did not have love and affection for each other but nevertheless intended to marry and live with each other.[64] The question is whether, given that a couple intend to live with each other, and they love each other, it would be within the ordinary person’s experience to expect that one of the parties who had the means of visiting the other party more than once in two years would visit the person more than the one occasion on which Mr Tran visited Ms Nguyen. In my opinion, that question is to be answered in the affirmative.
[64] Compare Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Conclusion and additional observations
The Tribunal did not assess the questions whether Ms Nguyen and Mr Tran genuinely intended to marry and to live together by applying arbitrary standards of conduct. In determining those questions the Tribunal implicitly relied on commonplace generalisations based on its common stock of knowledge of human affairs that included the conduct of persons who claimed they loved each other and intended to marry and live with each other. For these reasons, this part of Mr Tran’s case fails.
Before I leave this part of my reasons, it might be appropriate to note that my reasons might be taken to illustrate the following observations of Anderson:[65]
In most contexts, inductive reasoning operates intuitively. The reasoner does not consciously identify the generalizations upon which her inferences depend, unless she is required to justify her conclusions. Even then, she will often find it hard, probably impossible, to articulate the precise generalization upon which an inference relied, as opposed to articulating and after-the-fact generalization that she believes justifies her conclusion.
[65] Terence J Anderson, “On Generalizations I: A Preliminary Exploration” (1999) 40 S. Tex. Rev. 455, at page 456
This passage might suggest that when an applicant challenges a Tribunal’s finding of fact on the ground that it is irrational or unreasonable, it might not be appropriate for a court exercising judicial review jurisdiction to attempt to uncover the generalisations on which the Tribunal relied, and then to determine whether those generalisations are reasonable. The more appropriate course might be for the court simply to ask itself whether the finding that is challenged is irrational or unreasonable without attempting to identify the generalisations on which the Tribunal relied, and, when answering that question, to rely on the observations that have been made that it is only in rare cases that a challenge based on unreasonableness or irrationality would succeed.[66] Had I taken that approach I would not have been satisfied that any of the Tribunal’s findings Mr Tran challenges are unreasonable or illogical.
[66] In the case of legal unreasonableness, see Minister for Immigration and Citizenship v Li [2013] HCA 18, at [113]: “Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency.” (Gageler J). In the case of irrationality, see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, at [130]: “A court should be slow, although not unwilling, to interfere in an appropriate case.” (Crennan and Bell JJ)
Did the Tribunal make unreasonable findings?
Paragraph (d) of the particulars to the ground contained in the amended application claims the Tribunal made legally unreasonable findings of fact at paragraphs 21, 22, 29, and 30 of its reasons for decision. Neither in the particulars to the ground, nor in his written submissions, does Mr Tran identify the matters on which he relies for claiming the findings are unreasonable. Further, as I have already noted, Mr Tran’s counsel’s oral submissions were devoted to the claim that the Tribunal applied arbitrary standards of conduct.
I have set out earlier in these reasons the evidence and matters on which the Tribunal relied for making its findings. The question is whether any of the Tribunal’s findings either lack an “evident and intelligible justification”,[67] or are not findings that a reasonable Tribunal could have made given the evidence that was before the Tribunal. It cannot be said the Tribunal’s findings lacked an evidential or intelligible foundation; nor can it be said that its findings are findings that no reasonable Tribunal could have made having regard to the evidence and reasons on which the Tribunal relied, and the evidence that was otherwise before it.
[67] Minister for Immigration and Citizenship v Li [2013] HCA 18; at [76] (Hayne, Kiefel and Bell JJ)
Conclusion and disposition
Mr Tran has failed on the ground on which he relies. I therefore propose to order that the application be dismissed.
Counsel for both parties agreed that costs should follow the event, and that costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as at the date Mr Tran filed his application with this Court. That amount is $7,206. I also propose, therefore, to order that Mr Tran pay the Minister’s costs set in the amount of $7,206.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 October 2019
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