Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 24

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 24

File number(s):

MLG 3193 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

9 September 2021

Catchwords:

MIGRATION – Application for Prospective Marriage (Temporary) (Class TO) Visa – failure by Tribunal to make findings based upon a sound evidentiary basis – whether such failure deprived the applicant of a fair review hearing – where error found to be material – jurisdictional error established – application granted.

Legislation:

Migration Regulations 1994 (Cth) Sch 2, cl 300.216.

Cases cited:

MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378.

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303.

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

24 August 2021

Date of hearing:

24 August 2021

Place:

Brisbane

Counsel for the Applicant:

Mr A. Aleksov

Solicitor for the Applicant:

Mr. L. Bayly

Counsel for the First Respondent:

Mr J. Barrington

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 3193 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JENNY TRAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	9 SEPTEMBER 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The Amended Application for Review filed on 3 August 2021 be granted.

3.The decision of the Administrative Appeals Tribunal made on 20 September 2018 be quashed.

4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.

5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 20 September 2018.

6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

Introduction

1. The applicant is an Australian citizen who seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), where the Tribunal affirmed a decision of a delegate to the Minister to refuse to grant a Prospective Marriage (Temporary) (Class TO) Visa to a person claimed by the applicant to be her fiancée, namely one Kim Phong Thai.

2. On 18 June 2015, Mr Thai made an application for the visa on the basis that he was engaged to be married to the applicant.

3. On 24 June 2016, the delegate refused to grant the visa on the basis that the delegate was not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses as required by cl. 300.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

4. On 22 August 2018, the review applicant appeared before the Tribunal to give evidence and present arguments, her being represented at the time by a migration agent. On 20 September 2018, the Tribunal affirmed the decision of the delegate.

5. On 25 October 2018, the applicant filed an Originating Application for Review of the decision of the Tribunal.

   Grounds of Review

6. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 3 August 2021, the grounds of which were as follows:

   “Grounds of application

   The Administrative Appeals Tribunal (the Tribunal) made the following jurisdictional errors, by reason of which it is claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958 (Cth) (the Act).

   1.        The Tribunal erred in law by making a finding that was based on no evidence.

   Particulars

   a. The Tribunal acted on no evidence when it relied on supposed “cultural norms” in Vietnam at Reasons [61]-[63].

   2.        The Tribunal erred in law by failing to consider relevant material.

   Particulars

   a. The Tribunal failed to consider the evidence of communication between the parties prior to the refusal decision at the primary stage, at CB 161-166.”

7. As to Ground 1 of the Amended Application, it was submitted on behalf of the applicant that the Tribunal, at [61] – [63] of its reasons, erred when it made findings without any evidentiary basis for doing so. The Tribunal found as follows:

   [61]The Tribunal acknowledges that the parties travelled together to Thailand in December 2014 prior to their engagement on 20 May 2015. The Tribunal places some weight on this travel but notes that it is somewhat inconsistent with cultural norms for two persons who are not yet officially engaged to be travelling as a couple, even in the presence of a sibling as was the case in this matter. While the sponsor has a Western outlook and lifestyle it appears that the applicant does not, hence the Tribunal has questions as to why the travel was undertaken when it would have been more in keeping with tradition for the sponsor to spend time in the applicant’s home area in Ca Mau with the applicant and his family, and the community in general, getting to know one another. This leads the Tribunal to have concerns that the parties were not prepared to live their nascent relationship in the applicant’s community and that the travel was for the purpose of being able to put together evidence for the purposes of the application.

   [62]The Tribunal also acknowledges that the parties travelled to Singapore and were there, according to photographic material, on 15 May 2015; again prior to the engagement on 20 May 2015. The fact that the parties, rather than live out their relationship in a household setting such as at the applicant’s home, prior to committing to a long-term relationship leads the Tribunal to have questions as to whether the parties were attempting to conceal the relationship from the applicant’s community because the parties do not have a genuine intention to live together as spouses.

   [63]Neither of the parties appears to be generating significant income. It is perplexing, therefore, that they would use their limited resources to undertake travel together outside a formalised relationship as would be culturally the norm, and that they would use their scarce resources to undertake two trips rather than consolidate their relationship in the applicant’s environment. That they might have travelled together even in the context of having limited resources is not of note. But that they did so when they did, prior to having made a commitment in the form of an engagement within the context of the community, seems incongruent with cultural practice, leaving the Tribunal to have doubts about the purpose of the trips and whether they were undertaken solely for the purpose of providing evidence for the application and to conceal the arrangement from the applicant’s community in Vietnam. The fact that the sponsor’s sister may have been in attendance does not detract from the Tribunal’s concerns that it is unusual that the parties decided to undertake travel together when they had yet to make their relationship official.”
   
   (underlining added)

8. The no evidence rule was considered by Murphy J in MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 at [54] where it was said:

   “[54]Third, the appellant’s contention that there was “no evidence” for the Tribunal’s conclusions in respect of these two matters is untenable. As Weinberg J noted in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587; [2005] FCA 1707 at [575] the “no evidence” ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”. The learned authors Aronson and Groves in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) suggest that the “no evidence” ground “cuts out when even a skerrick of evidence appears”.”

9. At [7] – [12] of the applicant’s submissions filed on 10 August 2021, it was submitted as follows:

   “[7]There was no evidence of the applicable “tradition” before the Tribunal. On what basis the Tribunal might claim to have some personal experience of such matters is unclear. The Tribunal member is apparently Australian and does not have any apparent personal connection with Vietnamese culture or tradition.

   [8]The only lawful basis for the Tribunal to act on such a view is if there was some support for that “tradition” in country information before the Tribunal.

   [9]It is quite an important point. The Tribunal used this analysis to discount any weight being placed on the couple having each travelled (one more so, one less so) to be together, even if briefly. Indeed, not only did the Tribunal discount that evidence as tending in favour of the applicant (as should have been the case), it was used to fortify an adverse view that the couple were manufacturing evidence (a view which, once reached, plainly obliterated any prospect of success).

   [10]The point also applies to Reasons [62], where the Tribunal adopted an assumption that the parties would more likely, if they were genuine, have lived out their time together in a “household setting”. With respect, that is nonsense. The Tribunal accepted that the sponsor was “western” in her mindset. Why should she agree to live in some “non-western style” for the benefit of purported cultural norms that surround the daily circumstances of her fiancé? This applies a value set that is not justified by any evidence.

   [11]The point also applies to Reasons [63]. Whatever might be said of the limited resources of the couple, they spent some of those resources to be together. In sum, the Tribunal’s reasoning here boils down to little more than an assumption that it was more “appropriate” for a genuine couple to have spent time in the applicant’s home region (applying its apparently conservative and traditionalist values), rather than spending “fun times” together in another place away from “all that baggage”. That assumption was based on something described as a “cultural norm”, for which there was no evidence.

   [12]In the age of the internet, relationships have been transformed. With the experience of pandemic lockdowns, it is absurd to think that people could not have met, wooed and courted, and settled into a relationship, all without having physical contact or ever having met in person. In this case, the relationship presented to the Tribunal was not at all strange, given that many people were using the telecommunications for such purposes well before the pandemic.”

10. It was submitted on behalf of the applicant that the Tribunal had no basis for assuming that the review applicant and Mr Thai would necessarily act, or ought to necessarily act, in ways which were considered as cultural norms by the Tribunal member.

11. Counsel for the first respondent conceded that the question of whether or not the visa applicant did or didn’t have a ‘Western Outlook’ was not raised with him by the Tribunal member. The first respondent relied upon the judgment of Besanko J in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [15] – [17] where it was said:

    “[15]I turn to the relevant principles in relation to the no evidence ground. If a decision-maker makes a finding of fact for which there is a complete absence of evidence, then that is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] per Hayne, Heydon, Crennan and Kiefel JJ.

    [16]The position is not as clear as to whether and when a finding of fact made in the complete absence of evidence is a jurisdictional error. In SGLB (at [39]), Gummow and Hayne JJ seem to suggest that the no evidence ground of judicial review is only available where the relevant finding is a precondition to the exercise of jurisdiction. There is authority of this Court expressing the test differently and stating that the no evidence ground is available where the finding in respect of which it is said there is a complete absence of evidence is a critical step in the ultimate conclusion of the decision-maker. In SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232, at [38], Kenny J identified what her Honour called the two approaches and the authorities in relation to each approach. It is not necessary for me (as it was not necessary for Kenny J) to determine whether these two approaches co-exist and, if a choice is to be made, to identify the preferred approach. I say that because, in this case, the finding in respect of which it is said that there was no evidence was, in my opinion, a precondition to the exercise of the power to grant permission to appeal and hear the appeal. The decision of the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 seems to support the operation of the no evidence ground in such circumstances, although it might also be said that the real significance of the absence of evidence is that it leads without much difficulty to the conclusion that the wrong test has been applied.

    [17]I should say that the no evidence ground refers to no evidence before the decision-maker. Ordinarily that might be established by a record of the evidence put before the decision-maker or by reference to the decision-maker’s reasons. It would not ordinarily involve putting evidence of the “fact” before the court hearing the application for judicial review. That type of exercise is reserved for the type of jurisdictional fact case of which Enfield City Corporation is the best modern example. The Court did receive evidence in this case and perhaps it was not strictly admissible. In any event, for reasons I will give, the fate of the applicant’s application is the same with or without the evidence.”

12. It was submitted on behalf of the first respondent that an exchange at Transcript page 14, lines 8 – 10 constituted the skerrick of evidence sufficient to enable the Tribunal to make the findings it did. The Court does not accept such submission. The Court finds that the questions and answers recorded in the transcript were not responsive, as submitted on behalf of the first respondent, and did not constitute the skerrick of evidence as contended for.

13. The whole of the relevant exchange relating to the applicant’s first trip to Vietnam to see the visa applicant’s family in December 2014, before then travelling with the visa applicant to Thailand, was, at Transcript page 13.20 – 14.34, as follows:

    “You just decided that you would marry in what appears to be days really, more than months or years?---M’mm.

    Do you want to explain how that happened?---Well, I did get to know him after - like, a few long months and then I did meet his family as well, like I made that effort to - well, to travel to Vietnam to see him, so I felt like there was something there that could - like - - -

    You departed Australia on 8 December?---M’mm.

    Then came back on 30 December 2014?---M’mm.

    When was the first time you started speaking to him on Facebook?---August of that year.

    This 22 days that you were there?---M’mm.

    It would have been intense - - -?---M’mm - - -

    - - - as you got to know one another and talked about your future and so forth?---M’mm.

    What did you do to explore the relationship?---So, initially when I first went to Vietnam it wasn’t to talk about the relationship it was just for - to meet him and get to know him better because I’d never met him before, to see what he’s like in person.

    What did you do to do that - - -?---Well, we - - - -

    - - what attributed - - -?---From that trip (indistinct) we went to Thailand together, on a holiday together, so - and I went up to - well, meet his family, go back to his area where his family there. And then he met my families as well - - -

    Why did you decide to go to Thailand with someone that you really didn’t know, is it culturally appropriate that - - -?---No, because we just thought it  would be fun to see what it’s like - - -

    You weren’t in a relationship, a serious relationship?---It wasn’t just us two, there was (indistinct) there as well, we wanted to see what it was like in Thailand.

    It just concerns me that every time you see your partner there’s some side trip, it’s all part of some other - - -?---It’s spending more time together.

    Well, not in South Korea and not in Japan?---Well, I can spend time with my friends as well, like I don’t want to - like, I’m not a type of person just to be so dedicated to my fiancé that I just ignore all my friends.

    No, of course not - - -?---And I also - - -

    - - - one wouldn’t expect it?---Because they wouldn’t postpone their trip just for me. So, I wouldn’t want to miss out on that as well.

    You have quite a western outlook on life?---M’mm.

    But does Mr Thai, is he accepting that you’ve got this other life?---Yes, he - well, he’s aware of it, yes.

    We’ve talked about who knows about the relationship?---Yes.”

14. The content of the Transcript does not support the first respondent’s submissions. The review applicant was not endeavouring to indicate to the Tribunal that the relationship between her and the visa applicant was lacking in traditional definition - something that the Tribunal member appeared to be more focussed upon - but rather that her initial online contact, followed by her later personal contact, were the bases upon which their relationship grew. She said that she was willing to get to know the visa applicant better on that basis. It was submitted on behalf of the review applicant that there are many ways in which a prospective partner might be wooed. The Court agrees with that submission. That the actions of the review applicant and the visa applicant did not closely conform to the cultural norms of either the Tribunal member, or even a majority of Vietnamese people (about which there was no evidence), was of no moment. It was an error on the part of the Tribunal to make findings of fact based upon the Tribunal member’s view of the world, and then express doubt as to the validity of the relationship based on such doubt, when there was no evidentiary basis for the findings in the first place.

15. The Court holds that the Tribunal made findings which were not open on the evidence before it. It erred, and such error was material, in that had the Tribunal not made the findings that it did based on a misconception of the task to be undertaken by it, the Tribunal could realistically have arrived at a different decision. The inferences which the first respondent asked the Court to draw were not soundly or reasonably based.

16. There was also no basis for the submission that the Tribunal had some specialised accumulated knowledge which had enabled it to arrive at the conclusions which it had. It is trite that each Tribunal member has a different level of experience when dealing with visa applications involving citizens from nations across the world. In the absence of any evidence as to any particular level of familiarity of a Tribunal member when dealing with issues involving citizens of any one country, terms such as ‘specialised accumulated knowledge’, when directed to what a Tribunal member might or might not have considered constituted the cultural or traditional norms of any such country, are based upon unsubstantiated generalisations, and can be of no useful significance. 

1. The error on the part of the Tribunal deprived the applicant of a fair review hearing. The Court accepts the submissions made on behalf of the applicant on the question of the Tribunal’s having made findings in the absence of any supporting evidence. The error on the part of the Tribunal was jurisdictional in nature.

2. In the light of the Court’s finding on Ground 1 of the Amended Application, it is unnecessary to deal with the questions as raised in Ground 2.

3. The decision of the Tribunal is quashed.

4. The Amended Application for Review is granted, and the matter is remitted to the Tribunal for re-hearing according to law by a differently constituted Tribunal.

5. The Court will hear the parties as to costs.      

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       9 September 2021