Truong v Minister for Immigration

[2018] FCCA 497

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRUONG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 497

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Partner (Residence) (Class BS) (subclass 801) visa – whether the applicant raised claims under reg.1.15A(3)(d)(iii) of the Migration Regulations 1994 – whether the Tribunal failed to consider those claims – whether the Tribunal complied with the requirements of the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206.

Legislation:
Migration Act 1958 ss.5F
Migration Regulations 1994 reg.1.15A

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant: VAN PHUONG TRUONG

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2867 of 2015

Judgment of: Judge Riley

Hearing date: 6 February 2018

Date of last submission: 8 February 2018

Delivered at: Melbourne

Delivered on: 2 March 2018

REPRESENTATION

Counsel for the applicant: Angel Aleksov

Solicitors for the applicant: Victoria Immigration Lawyers

Counsel for the first respondent: Liam Brown

Solicitors for the first respondent: Sparke Helmore Lawyers

Advocate for the second respondent: No appearance

Solicitors for the second respondent: Sparke Helmore Lawyers

ORDERS

1. The decision of the Administrative Appeals Tribunal made on 1 December 2015 in matter number 1418339 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2867 of 2015

VAN PHUONG TRUONG

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa.  To be eligible for a partner visa, the applicant needed to be the spouse of his sponsor at the time of decision.  The Tribunal was not satisfied that the applicant and his sponsor were in a genuine and continuing spousal relationship at the time of decision.

Legislation

1. Section 5F of the Migration Act 1958 defined spouse at the relevant time as follows:

   (1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), 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:

   (i)      live together; or

   (ii)    do not live separately and apart on a permanent basis.

   (3)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. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

2. Regulation 1.15A of the Migration Regulations 1994 (“the Regulations”) provided that:

   (1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)      any joint ownership of real estate or other major assets; and

   (ii)    any joint liabilities; and

   (iii)   the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)the nature of the household, including:

   (i)      any joint responsibility for the care and support of children; and

   (ii)    the living arrangements of the persons; and

   (iii)   any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)      whether the persons represent themselves to other people as being married to each other; and

   (ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)   any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)      the duration of the relationship; and

   (ii)    the length of time during which the persons have lived together; and

   (iii)   the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long-term one.

Grounds of review

1. The application filed in this court on 24 December 2015 had three grounds of review.  However, the second and third grounds were abandoned at the hearing.  The remaining ground is:

   The Tribunal failed to take into account mandatory relevant considerations, being the matters set out in rr 1.15A(3)(d)(i)-(iii) of the Migration Regulations 1994 (Cth).

2. During the course of the hearing, the applicant conceded that the Tribunal had considered the matters set out in reg.1.15A(3)(d)(i) and (ii) of the Regulations. The applicant submitted, however, that the Tribunal had not considered the matters set out in reg.1.15A(3)(d)(iii) of the Regulations. As set out above, reg.1.15A(3)(d)(iii) of the Regulations required consideration of:

   the degree of companionship and emotional support that the persons draw from each other[.]

3. The Minister initially argued that the Tribunal was not required to consider the matters set out in reg.1.15A(3)(d)(i) to (iv) of the Regulations, but was only required to consider the broad topic in reg.1.15A(3)(d) of the Regulations. The Minister made the same argument in respect of reg.1.15A(3)(a), (b) and (c) of the Regulations. However, after the hearing, the Minister advised the court and the applicant by email that the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206 was to the contrary. The Minister conceded in effect that, in general, the Tribunal was required to consider the matters set out in reg.1.15A(3)(d)(iii) of the Regulations, and the matters set out in all of the subparagraphs of reg.1.15A(3) of the Regulations.

4. Nevertheless, the Minister maintained his alternative arguments, which were that:

   a)the fact that the Tribunal did not expressly refer to the matters contemplated by reg.1.15A(3)(d)(iii) of the Regulations did not mean that the Tribunal did not consider them;

   b)the Tribunal was under no obligation to consider the matters contemplated by reg.1.15A(3)(d)(iii) of the Regulations in the circumstances of this case because the applicant did not raise any claims in relation to them; and

   c)the Tribunal dealt adequately with any claims made by the applicant in relation to reg.1.15A(3)(d)(iii) of the Regulations in circumstances where the applicant did not put forward a strong case in relation to reg.1.15A(3)(d)(iii) of the Regulations.

5. The applicant maintained that he did raise claims concerning the matters set out in reg.1.15A(3)(d)(iii) of the Regulations. The applicant pointed to his statutory declaration made on 24 May 2013 (CB70) in which he said:

   [My] and [the sponsor’s] relationship is definitely a long-term one, we are in for the long run. We always draw support from one another. We are always planning for the future with one another. In the near future we wish to travel interstate, to America and to Vietnam for holidays. We want to visit old family and friends back in Vietnam. [The sponsor] plans to keep her current job and we are happy where we currently are. (emphasis added)

6. The applicant also pointed to the statutory declaration made by his sponsor on 24 May 2013 (CB74) in which she said:

   Our commitment to one another is definitely a strong long-term one. We are in it for the long run. We are always planning for the future with one another. We are currently happy where we are. We enjoy living with my Son’s family, we enjoy spending time with my granddaughter. I am planning on [keeping] my current job, I am enjoying it. In the near future, we are planning on travelling; interstate, America and Vietnam. We are planning to visit old family and friends.

7. The applicant also relied on a joint statement made by the applicant and his sponsor (CB391) in which they said:

   5.It was July 2008 that [the sponsor] first wrote a letter to [the applicant] asking him about his life and telling him about her life in Australia.

   [The applicant], no doubt was able to sense through [the sponsor’s] writing that she was lonely and in need of a friend to talk to so he quickly responded to her letter believing that it will give her some comfort.

   6.From then, the two friends began their constant contact with each other, with [the sponsor] even making phone calls to [the applicant]. It helped tremendously with her loneliness.

8. The statement about the alleviation of the sponsor’s loneliness at the commencement of the relationship does not address the question of the degree of emotional support that they provided to each other at the time of decision, or throughout the relationship.  However, the applicant’s statement that:

   We always draw support from one another

   was sufficient to raise the claim that the applicant and his sponsor provided a degree of emotional support to each other. 

9. The matters set out above are also sufficient to raise a claim that the applicant and sponsor provided companionship to each other, insofar as they claimed to spend time with the sponsor’s granddaughter and they claimed to plan to travel together.

10. Consequently, I reject the Minister’s argument summarised in paragraph 7(b) above. 

11. In relation to the Minister’s argument in summarised paragraph 7(a) above, the parties were in agreement that the only part of the Tribunal’s reasons where, on any view, it could have dealt with the matters set out in reg.1.15A(3)(d)(iii) of the Regulations was in paragraph 24 of its reasons for decision. That paragraph is as follows:

    The Tribunal has considered the parties claim to be in a relationship since 2008 and lived together since 2009 and been married since 2011. The Tribunal has considered the length of the claimed relationship. The Tribunal has considered the evidence of the applicant that the parties plan to purchase a house in the future. The Tribunal has considered the inconsistent evidence that the sponsor does not mention any plans to purchase property. The Tribunal has noted that the applicant gave evidence of his future plans of visiting grandchildren, whilst the sponsor gave evidence of her plans to retire and travel as the focus of her future plans. As discussed above, the Tribunal puts weight on the fact the applicant and sponsor give different evidence about their future plans to purchase property. The Tribunal has considered the evidence before it and is not satisfied, based on the evidence of the applicant and the sponsor that they see the relationship at the time of decision as a long-term relationship. The Tribunal is not satisfied that the evidence of the nature of the persons’ commitment to each other is evidence that they are in a genuine and continuing relationship, or that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, at the time of decision.

12. There is nothing in that paragraph that shows, even implicitly, any consideration of the degree of emotional support and companionship that the applicant and sponsor provided to each other.  Consequently, I reject the Minister’s argument summarised in paragraph 7(a) above.

13. In relation to the Minister’s argument summarised in paragraph 7(c) above, once a claim is raised, even if only weakly, the Tribunal is required to deal with it.  With this argument, the Minister is basically asking the court to engage in merits review, and determine that, on the evidence provided, the case was weak so it did not need to be properly considered.  I reject the Minister’s argument summarised in paragraph 7(c) above.

14. The Minister also said that the Tribunal did deal with the issue of the degree of emotional support and companionship that the applicant and sponsor provided to each other by determining that their plans for the future were different, and forming therefore an adverse view of the relationship.  Part of the Tribunal’s consideration about the future plans of the applicant and the sponsor were set out in paragraph 24 of its reasons for decision, which is quoted above, and part was contained in paragraph 20 of the Tribunal’s reasons for decision, which is as follows:

    The Tribunal has considered the representative’s comments in relation to the inconsistent evidence of the parties’ plans for the future. The Tribunal does accept that it is not uncommon for couples to have different views on aspects of future plans. The Tribunal does consider it is relevant that the fact the sponsor did not refer to the possibility of the purchase of a house in the future and the applicant did see this as a future aspect of their relationship and commitment to each other. The Tribunal finds that the evidence that only the applicant and not the sponsor considered the prospect of purchasing a home together in the future, is indicative that the parties have not discussed their future plans.  Further, this evidence indicates that they may not be in a genuine and continuing relationship if they are not committed to each other and a future together. However the Tribunal does accept people can have a different focus for their future, especially given their current occupation.  Therefore the evidence of the sponsor that she saw her future as one for retiring and travel, and the applicant that he saw the future was time for taking care of the grandchildren, are not necessarily incompatible or inconsistent with each other’s evidence. (emphasis added)

15. It can be seen from paragraph 20 of the Tribunal’s reasons for decision that the Tribunal did not take an entirely adverse view of the differences between the applicant and sponsor’s plans for the future.  However, it can also be seen from that paragraph that the Tribunal did not assess those plans as evidence of companionship and emotional support but as evidence of potential inconsistencies in their claims.  The Tribunal’s treatment of the future plans of the applicant and the respondent does not demonstrate a consideration, whether implicit or explicit, of the degree of emotional support and companionship that the applicant and sponsor provided to each other.

16. Moreover, in He, the Full Court said at [76]:

    In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

    (i)whether there are children and whether there is any joint responsibility for their care and support;

    (ii)what the living arrangements of the persons are; and

    (iii)whether and to what extent there is sharing of the responsibility for housework.

    The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.

17. Consequently, even if there is a weak case, or no case at all, raised in relation to one of the matters specified in the sub-paragraphs of reg.1.15A(3) of the Regulations, the Tribunal should say so in its reasons for decision.

18. For the reasons discussed above, the Tribunal failed to consider a matter that it was required to consider, and thereby fell into jurisdictional error.

Conclusion

1. As the applicant’s ground of review has been made out, the matter will be remitted to the Tribunal with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:             2 March 2018