Trinh v Minister for Immigration and Citizenship - [2012] FMCA 1057

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRINH & ORS v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] FMCA 1057

MIGRATION – Judicial review of decision of the Migration Review Tribunal – Partner (Residence) (Class BS) visa – Tribunal’s decision based on findings or inferences of fact and supported by logical grounds – s.359A of the Migration Act – application dismissed.

Migration Act 1958 (Cth) ss. 359A, 353(1), 474(2)
Migration Regulations 1994 (Cth) schedule 2 (cls. 801.111, 801.22, 801.221, 801.321), regulation 1.15(1A), 1.15A(3)

Bushell v Repatriation Commission (1992) 175 CLR 408
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 215 ALR 162

First Applicant:

THI THU TRINH TRINH

Second Applicant:

QUANG TRI TONY NGUYEN

Third Applicant:

JENNY NGOC NHU NGUYEN

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 153 of 2012

Judgment of:

Harnett FM

Hearing date:

7 August 2012

Delivered at:

Melbourne

Delivered on:

16 November 2012

REPRESENTATION

Counsel for the First Applicant:

Mr Fernandez

Solicitors for the First Applicant:

T A Fernandez Barrister & Solicitor

Counsel for the Second Applicant:

Mr Fernandez

Solicitors for the Second Applicant:

T A Fernandez Barrister & Solicitor

Counsel for the Third Applicant:

Mr Fernandez

Solicitors for the Third Applicant:

T A Fernandez Barrister & Solicitor

Counsel for the First Respondent:

Ms Holt

Solicitors for the Second Respondent:

Clayton Utz

THE COURT ORDERS THAT:

The application filed 15 February 2012 is dismissed.
The first applicant pay the first respondent’s costs fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 153 of 2012

THI THU TRINH TRINH

First Applicant

QUANG TRI TONY NGUYEN

Second Applicant

JENNY NGOC NHU NGUYEN

Third Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application filed in this Court on 15 February 2012, the applicants seek judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made 13 January 2012. The Tribunal affirmed a decision of a delegate of the first respondent made 15 July 2009. There is in support of that application, an affidavit sworn by Thi Thu Trinh Trinh on 15 February 2012, which in essence annexes the decision record of the Migration Review Tribunal.

Grounds of Application

The grounds of the application are as follows:
1. The Tribunal erred in invoking Section 359A of the Migration Act when such invocation was not applicable pursuant to Sub Section (4) of the Act.
2. In seeking to rely on the response of the [first] Applicant pursuant to the notice, the Tribunal acted contrary to Section 353 of the Act.
3. In relation to the financial aspects of the relationship the Tribunal has failed to consider the evidence in its proper perspective and has instead relied upon the statutory declaration of the [first] named applicant. This applies with equal force to the Tribunal’s finding of the nature of the household and other aspects of the relationship. Thereby breaching the natural justice hearing rule.
4. The finding in paragraphs 90 and 97 and 98 of the Tribunal’s decision is contrary to law.
5. The findings of the Tribunal are illogical and flies in the face of cogent evidence with (sic) the tribunal has failed to consider.”
The first respondent filed a response to the application on 29 February 2012 which seeks the dismissal of the application. The first respondent argues that the decision of the Migration Review Tribunal dated 13 January 2012 is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 (Cth) (“the Act”).

Background

The first applicant (‘the applicant’) married the sponsor on 14 February 2003, arriving in Australia with her children (the second and third named applicants) as holders of Prospective Marriage (Temporary) (Class TO) (Subclass 300) visas. On 11 April 2003, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa. On 26 June 2003, the applicant was granted a Subclass 820 visa.
On 9 July 2008, a delegate of the Minister of Immigration and Citizenship (‘the delegate’) invited the applicant and her sponsor to attend an appointment with an assessing officer to discuss her case on 25 July 2008. The applicant and her sponsor attended this interview.
On 15 July 2009, the delegate made the decision to refuse the applicant’s application for a Partner (Residence) (Class BS) visa. The delegate was not satisfied that the applicant satisfied the criteria for the grant of a Subclass 801 visa, as provided for in cl.801.221 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate’s decision made 15 July 2009 was sent to the applicant’s authorised representative under cover of letter dated 21 July 2009.
On 6 August 2009, the applicant applied to the Tribunal for a review of the delegate’s decision. On 27 September 2011, the Tribunal sent a letter to the applicant’s authorised representative inviting the applicant to appear before the Tribunal on 18 October 2011. On 10 October 2011, the applicant’s newly appointed authorised representative informed the Tribunal that he and the applicant and her sponsor would attend the hearing on 18 October 2011.
On 18 October 2011, the applicant, her sponsor and her authorised representative appeared at a hearing before the Tribunal and gave evidence under affirmation with the assistance of an interpreter.
On 26 October 2011, the applicant’s authorised representative provided the Tribunal with two statutory declarations by supporting witnesses relating to a partner visa application.
By letter dated 2 November 2011 and pursuant to s.359A of the Act, the Tribunal invited the applicant to comment or respond to information by 9 December 2011. On 5 December 2011, the applicant provided a response to the Tribunal with a statutory declaration dated 28 November 2011.
On 13 January 2012, the Tribunal made a decision affirming the delegate’s decision under review. The Tribunal found that the first named applicant did not satisfy the requirements of cl.801.221 and that the second and third named applicants could not satisfy cl.801.321. The Tribunal’s determination was not to grant the applicants’ Partner (Residence (Class BS)) visas.

The Tribunal Hearing

The Tribunal had before it the Department of Immigration and Citizenship’s file relating to the applicants. The Tribunal also had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. The Tribunal heard evidence from the first named applicant in its hearing on 18 October 2011 and also received oral evidence from Mr Hoang Nam Duong, the applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English language.
The visa applicant is a citizen of Vietnam and was born in Tra Vinh Vietnam, sometime in 1965. She previously resided in Germany. She was previously married and that marriage ended in divorce in February 2001. She has two children from that earlier relationship. The sponsor is Mr Hoang Nam Duong. He was born in Tra Vinh Vietnam on 15 January 1967, and became an Australian citizen on 16 August 1984 and holds an Australian passport. He was previously married with that relationship ending in divorce in March 2001. He has three children from that relationship.
The parties claimed to have met each other in Tra Vinh in February 1992 and fallen in love with each other. However, the sponsor’s parents did not support their relationship and so the applicant and sponsor married different people. In January 2001, the applicant travelled to Australia to visit her sister and the parties again met. Their relationship resumed. The sponsor told the applicant that he wanted to start a long term relationship. She accepted his proposal and they made a decision to enter such relationship on Valentine’s Day 14 February 2001. They both divorced their previous partners in 2001.
The applicant arrived in Australia on 13 February 2003 on a Subclass 300 (Prospective Spouse) visa under the sponsor’s sponsorship and the parties were married on 20 February 2003. The Tribunal found that Mr Duong (the sponsor) was a “sponsoring spouse” for the purpose of cl.801.111 in Schedule 2 of the Regulations.
The Tribunal had regard to the certified German divorce certificate of the applicant and noted that the sponsor’s claim to have been divorced from his wife in March 2001, which was accepted by the Tribunal. The Tribunal also had regard to the certified copy of the certificate of marriage of the applicant and sponsor and found that they were married on 20 February 2003. The Tribunal found that at the time of its decision the applicant and sponsor were married to each other under a marriage that was recognised as valid for the purposes of the Act. They therefore satisfied the requirements of Regulation 1.15A(1A)(a) of the Regulations for a married relationship.
The Tribunal set out the legislative framework at paragraphs 6 to 20 of its reasons and the evidence and claims that were before it. The Tribunal noted that the criteria for the grant of a Subclass 801 (Spouse) visa as set out in Part 801 of Schedule 2 to the Regulations provided for no criteria to be satisfied at the time of the application. The Tribunal further noted the primary criteria to be satisfied at the time of the decision was as set out in cl.801.22. Clause 801.22(1) required the applicant to meet the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
The Tribunal noted the principal issue in the case was whether the applicant was the spouse of the sponsoring spouse at the time of decision. The Tribunal noted that it was required to be satisfied that there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing, and that the couple lived together, or did not live separately and apart on a permanent basis. This required a consideration by the Tribunal of all circumstances of the relationship including in particular the considerations set out in Regulation 1.15A(3) of the Regulations. These considerations related to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other.
In forming an opinion whether the applicant and her sponsor were in a married relationship, including whether they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship was genuine and continuing and whether they lived together or did not live separately and apart on a permanent basis, the Tribunal in fact had regard to all of the circumstances of the relationship including the evidence put forward of the financial and social aspects, and the nature of the applicant’s and sponsor’s household and their commitment to each other as required by the legislation. The Tribunal’s assessment in relation to each of those factors appeared in the Tribunal’s reasons.
In relation to the financial aspects of the relationship, the Tribunal found that the applicant and the sponsor did not have a significant financial aspect of their relationship (for the purposes of Regulation 1.15A(3)(a) of the Regulations) and gave this aspect some weight. The Tribunal noted that it had before it evidence that the parties had essentially maintained very separate financial affairs despite being married for over eight years and noted that there was very little evidence that they had joint ownership of real estate or other major assets, joint liabilities, that they had pooled their finances in a meaningful way, had any legal obligations toward each other, or even any convincing evidence that they shared day to day household expenses. The Tribunal said in paragraph 70 of its reasons:
“…Apart from a shared bank account which they both gave evidence was little used, some bills which were in both their names, and the purchase of one appliance many years ago, there is very little evidence of a financial aspect to the relationship. The Tribunal finds that the parties do not have a significant financial aspect of their relationship, as set out in r.1.15A(3)(a), and gives this aspect some weight.”
When considering the nature of the household, the Tribunal noted the parties gave generally consistent but not detailed evidence about their living arrangements and housework. The Tribunal found that the inconsistency in the evidence of the parties in relation to this matter was irreconcilable. The Tribunal repeatedly questioned the parties about their household arrangements and child care arrangements at the hearing and was unable to get a consistent and satisfactory response and the applicant’s further written response did not address these inconsistencies and concerns. The description of the system by which the applicant, the sponsor and her ex-husband managed the Sunday visits of the applicant’s children with their father and possible illnesses of the children, was not believable. The Tribunal found that the parties did not share a household in any meaningful sense as required by Regulation 1.15A(3)(b) of the Regulations. The Tribunal gave that aspect significant weight.
In relation to the social aspects of the relationship, the Tribunal noted that it sought to elicit how and when the parties represented themselves to others as being in a relationship with each other and any social activities undertaken together. The Tribunal noted the applicant and responded had not undertaken any shared social activities, given their working hours. When asked whether the applicant saw her siblings, the applicant said she did, but by herself to exchange bread from their bakeries but not with her husband. When asked, the sponsor said that he did see the applicant’s siblings, but not regularly, on weekends and at parties, and that he normally went with the applicant, and that the two of them had gone to the applicant’s older sister’s house together approximately two to three months earlier.
The Tribunal put the inconsistencies in the evidence between the applicant and her sponsor to the applicant in the s.359A letter subsequently forwarded to the applicant. The applicant responded that:
“Since February 2010 I have purchased the bakery from my Nephew and I have started to run the bakery on my own without help from anyone. Most of the time I would have to be in the shop as I only have one assistant. There are a few times that I get to go and visit relatives. It is true that I meet my siblings whilst exchanging bread. On that one occasion when my husband said that we went to visit my sister Lanh I forget (sic) to mention that to the tribunal. It was not a memorable event therefore it slipped my mind and totally forget (sic) to mention that at the hearing.”
The Tribunal did not accept that explanation and considered the statutory declarations from relatives of the applicant and a friend of the parties to be generic and lacking in detail, and accordingly gave them little weight. The Tribunal noted on the basis of the information provided at the hearing and the concerns raised by it in the s.359A letter, it found the parties did not undertake shared social activities, and that they did not have a social aspect to their relationship as specified in Regulation 1.15A(3)(c) of the Regulations and gave that aspect some weight.
In relation to the nature of the persons’ commitment to each other, the Tribunal found:
a)the applicant and the sponsor were not telling the truth about when they saw each other and this raised doubts as to whether they lived together and were in a genuine relationship;
b)the applicant had not been truthful about her family’s reaction to the marriage in 1992 or 2003, and that this cast doubt on the claims of the applicant and the sponsor about meeting in 1992 and why they married other people at the time;
c)there was little evidence that they were committed to each other or that they shared their lives together, or that they drew companionship and emotional support from each other.
The Tribunal therefore concluded, that the applicant and the sponsor were not committed to each other as set out in Regulation 1.15A(3)(d) of the Regulations and gave this factor considerable weight.
In relation to other relevant considerations:
a)the Tribunal questioned the applicant about her travel to Australia with her ex‑husband on two occasions in 2001 and 2003. The applicant first denied that she had travelled with him, but then admitted that she had, but said that she had done this so that her ex-husband and father of the children could help with the children on the flight. In response to the s.359A letter, the applicant said:
“In 2001 Mr Van Ngoc accompanied me and the children to Australia was (sic) because the 2 children were very young one, was 1 year old and the other 4 years. He helped to manage the children on flight and he also came because he had his own relatives in Australia. On the 2^nd occasion he accompanied me and the children in 2003 because he wanted to be with the children for the final time as he knew that he would not be seeing the children after that, with knowledge of the fact that I was settling down with someone else in Australia. Mr Van Ngoc Nguyen returned to Germany soon after that visit.”
The Tribunal noted that at the hearing the applicant gave considerable evidence that she had divorced her ex-husband because he had lost a considerable sum of her/their money on gambling, and that this had led to a lot of fights and then the divorce in 2001. The Tribunal did not accept that in this scenario, recently divorced, that a divorced couple would travel together some two years after the divorce. The Tribunal found that placed serious questions over whether the applicant was in a spousal relationship with the sponsor, or that she and the sponsor had a mutual commitment to a shared life to the exclusion of all others;
b)the Tribunal considered the claims of the parties to have lived together at the same address for six months or longer. The Tribunal accepted this evidence and noted that it was to be taken as strong evidence pursuant to the Regulations, but found that the weight to be given to their cohabitation did not displace the concerns and weights given to the aspects of the relationship set out in Regulation 1.15A(3) of the Regulations as detailed in its reasons;
c)the Tribunal was not satisfied that the relationship was genuine and continuing or that the applicant and the sponsor had a mutual relationship to the exclusion of all others, and found therefore that they did not meet the requirements of Regulation 1.15A(1A)(b)(i) and Regulation 1.15A(1A)(b)(ii) of the Regulations. The Tribunal noted the parties gave inconsistent evidence in relation to key claims made pertaining to their relationship. The applicant’s evidence was that the parties did not share funds, did not engage in social activities together, and otherwise her evidence was found to be vague or inconsistent in respect of a shared household;
d)the Tribunal was not satisfied that at the time of decision the applicant and sponsor lived together or did not live separately and apart on a permanent basis and, accordingly, they did not meet the requirements of Regulation 1.15(1A)(b)(iii) of the Regulations for a married relationship.

For the totality of the reasons above, the Tribunal found that at the time of decision the applicant and the sponsoring spouse were not in a married relationship within the meaning of Regulation 1.15A(1) of the Regulations. The Tribunal therefore found that at the time of the decision the applicant was not the spouse within the meaning of Regulation 1.15A of the Regulations or the sponsoring spouse, being the person who was specified as the applicant’s spouse in the Subclass 820 application. Therefore, the Tribunal found the applicant did not meet the criterion contained in cl.801.221(2)(c) for the grant of a Subclass 801 visa. Further, as the applicant did not meet the prescribed criterion in cl.801.221(1), the Tribunal found she could not be granted a Subclass 801 visa.
At paragraph 97 of its reasons, the Tribunal said the following:
“At the end of the hearing, the applicant made a pleading to the Tribunal on behalf of her children, asking that they be granted permanent visas. She stated that if she had to return to Vietnam, as German citizens they would not be accepted by the Vietnamese authorities. The Tribunal does not accept this. Independent country information on the Australian Embassy, Hanoi, website states that:
“According to the new Citizenship Law of the Socialist Republic of Vietnam which came into effect on 1 January 1999, the Vietnamese Government still does not recognise dual nationality - any person with Vietnamese citizenship (whether or not the person also possesses the citizenship of another country e.g. Australia) is regarded by the Vietnamese government firstly as a Vietnamese national. The only exception to this is where a person has formally renounced their Vietnamese citizenship (see below).
Vietnamese citizenship can be acquired by birth or by application to the Vietnamese authorities. Any person born with at least one parent who is a Vietnamese citizen, whether the person was born in or outside Vietnam, is generally considered by Vietnamese law to be a Vietnamese citizen.
(http: Vietnamese_national html – accessed 3January 2012).”

Consideration

Each party in the proceedings filed contentions of fact and law, the applicants dated 10 July 2012 and the first respondents dated 30 July 2012.
In submissions made by counsel for the applicant at the hearing and in respect of the grounds as set out in the application, counsel noted that ground 4 would not be pursued as it was not particularly relevant, and that counsel would concentrate more specifically on grounds 1 and 3, as set out in the application. In particular, the applicant argued that the section 359A notice was invalid and that the Tribunal failed to consider whether the parties were in a genuine relationship or not.
Section 359A of the Act does not specifically exclude or prohibit a Tribunal from inviting an applicant to comment upon information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review, after a hearing as opposed to during the conduct of a review (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 215 ALR 162 at 181,199,2010).
By providing the applicant with the further opportunity that it did to comment upon information, the Tribunal was, in exercising its power of review under the Act, ensuring that it arrived at the correct or preferable decision. This is the primary duty of an inquisitorial tribunal (Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J). By its letter dated 2 November 2011, the Tribunal invited the applicant to comment upon specific inconsistencies between her evidence and that of the sponsor and set out why such information was relevant to the review. Such information was clearly sought pursuant to s.359A of the Act and in compliance with that section. There was no breach of s.359A of the Act committed by the Tribunal.
The reliance of the Tribunal upon the applicant’s statutory declaration dated 28 November 2011 was in accordance with the objective of s.353(1) of the Act to provide a “mechanism of review that is fair, just, economical, informal and quick.” In any event, this ground is not pressed and no jurisdictional error attends it.
It is clear, in its reasons, that the Tribunal considered each of the applicant’s claims and all of the evidence, being both the evidence given at the hearing and the statutory declaration dated 28 November 2011. It applied the relevant criteria in Schedule 2 of the Regulations and made findings of fact open to it on the evidence before it. The Tribunal, in its fact finding function, is not required to uncritically accept any or all of the claims made by the applicant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 551). It is a matter for the Tribunal what weight it gives to each of the parts of the evidence before it. A tribunal is not obliged to comment on every item before it, to the extent of saying why it rejected a piece of evidence or attributed less weight to it than another item (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]). In fact, the Tribunal set out the weight accorded by it to of the various parts of the evidence.
The Tribunal accorded to the applicant and her sponsor, natural justice. There is not established by the applicant any failure to comply with the obligations under Part 5, Division 5 of the Act, which are placed upon the Tribunal. The Tribunal had concerns about the inconsistencies in the evidence between that of the applicant given at the hearing and that of the sponsor given at the hearing. The Tribunal was not satisfied with the explanation given by the applicant in response to its concerns, as set out in the applicant’s statutory declaration dated 28 November 2011 and made consequential findings. It is well established that credibility findings are findings of fact and is a matter for the Tribunal par excellence (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[67]).
The Court finds the Tribunal carefully considered the applicant’s evidence and claims and as submitted by counsel for the applicant its findings were neither illogical or irrational but rather findings or inferences of fact supported by logical grounds (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38] per Gummow and Hayne JJ). Accordingly the application shall be dismissed and the applicant shall pay the costs of the first respondent.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Harnett FM.

Date: 16 November 2012