Truong v Minister for Immigration
[2015] FCCA 2319
•26 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRUONG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2319 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Partner (Residence) (Class BS) visa – domestic violence – relevant considerations – whether incomplete evidence relating to an Apprehended Domestic Violence Order was material to the making of the Tribunal’s decision on the existence of a genuine spousal relationship – jurisdictional error – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 |
| Kaur v the Minister for Immigration and Border Protection [2014] FCA 1251 Singh v the Minister for Immigration and Border Protection [2015] FCA 558 |
| Applicant: | UYEN TRUONG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1330 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 26 August 2015 |
| Date of Last Submission: | 26 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Karp |
| Solicitors for the Applicant: | My T Nguyen Solicitors |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.
Time under s.477 of the Migration Act 1958 (Cth) is extended up to and including 15 May 2015.
A writ of certiorari is issued removing the record of the Administrative Appeals Tribunal decision made on 25 March 2015 into this Court and the decision is quashed.
A writ of mandamus is issued requiring the Administrative Appeals Tribunal to reconsider and re-determine the Applicant’s application for a Partner (Migrant) (Class BC) Visa according to law.
The First Respondent pay the Applicant’s costs fixed in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1330 of 2015
| UYEN TRUONG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal made on 25 March 2015 affirming a decision of the delegate not the grant the applicant a Partner (Residence) (Class BS) visa.
The amended application identifies the following grounds:
1. The Tribunal erred in failing to consider cogent evidentiary material in its assessment of whether the applicant and her estranged husband had been in a genuine spousal relationship.
Particulars
(a)Failure to lawfully consider the 7 pages of the Provisional Apprehended Domestic Violence Order taken out on 6 February 2015, and the Apprehended Domestic Violence Order made by the Fairfield Local Court on 20 February 2015, both of which named the sponsor as the defendant, and both of which were for the protection of the Applicant.
2. The Tribunal erred in failing to take into account the legal basis upon which the final Apprehended Domestic Violence Order was taken out against the applicant’s sponsor, thereby failing in the lawful exercise of its jurisdiction.
Particulars
(a) Sections 15 and 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) require that for an Apprehended Violence Order to issue the person in need of protection must be or have been in a “domestic relationship” as defined in s.5 of that Act with the person against whom protection is sought.
Ms Truong’s solicitor gave evidence on behalf of the applicant that she attended the hearing before the Tribunal and handed up a covering letter to the Tribunal together with a seven page document relating to a provisional Apprehended Domestic Violence Order taken out on 6 February 2015 and a bundle of other documents purportedly relating to evidence of cohabitation. Ms Truong gave evidence that she did not have a copy of the Apprehended Domestic Violence Order document of seven pages and requested the Tribunal to copy it and return it to the applicant.
I accept the evidence of Ms Truong that the original was returned to her. Other evidence was put on by the solicitor for the first respondent, Ms Hooper, in relation to what was on the record of the Tribunal. I accept that the only the first four pages of the seven page document were treated as in evidence in the review by the Tribunal. The applicant intended to provide and physically did provide to the Tribunal the whole seven pages. Unknown to the applicant or her solicitor the review proceeded with only a copy of the first four pages in evidence before the Tribunal. Until after the decision the applicant was unaware that the Tribunal had not copied the last three pages, and the applicant clearly intended the Tribunal to have before it the whole of the seven page document. Albeit I note that the four page document before the Tribunal does record that it is only four pages out of seven.
Mr Karp of counsel identified that there were two critical parts in the missing pages of the seven page document. Those alleged critical parts were on page 5 which counsel for the applicant submitted as were material to the reasoning of the Tribunal in this case. Those passages are as follows:
Approximately 12:05am on Saturday 24th January 2015, the Pinop contacted Police for assistance as the Defendant became verbally and physically aggressive towards the Pinop after the Pinop refused to give him money. Police attended and removed the Defendant from the location for breaching the peace. At this time the Pinop did not wish to supply Police with a signed statement as she was nervous, unaware and not educated in relation to the actions Police can take for the protection of the Pinop due to her cultural and language barriers.
…
Police with the assistance of a qualified Vietnamese interpreter obtained a signed statement from the Pinop detailing the above mentioned events.
Mr Karp of counsel identified the materiality of that information arose out of the reasoning of the Tribunal in making a finding that the parties had not ever lived together at the Greenfield Park address since their marriage on 25 August 2011. That finding in para.51 was the subject of a further statement by the Tribunal that it was not prepared to accept the applicant and sponsor lived together at the Greenfield Park address, or at any other premises after their marriage in para.55. Materially a conclusion to the same effect by the Tribunal is recorded in the last sentence at para.63.
It is clear that the reasoning in para.63 was part of the reasoning process by which the Tribunal determined whether the Tribunal was satisfied that there was a spousal relationship between the applicant and her former sponsor. Paragraph 63 is as follows:
63. The Tribunal has taken into account the evidence of the Interim and Final ADVO Orders provided. As noted above, there was inconsistent evidence before the Tribunal about who had contacted the police in January 2015. The Tribunal has not been provided with any independent evidence to indicate that the police were actually called to the parties’ home in January 2015. The copies of the Interim and Final ADVO Orders do not persuade the Tribunal that the parties were ever living together at the Greenfield Park address.
The last sentence materially refers to the interim and the final ADVO orders. It is the interim order that was incomplete and missing the three pages with the alleged critical material referred to above. It was the interim order that Mr Karp of counsel relied upon as identifying potentially material information that the Tribunal did not have regard to in its review because of the failure to keep a full photocopy of the whole of the seven page document. I should note that I accept Ms Truong’s evidence, and I find that in this case the Tribunal was handed the seven-page document, and that by error only the first four of those pages were retained by the Tribunal. The Tribunal did not have in evidence and did not have regard to the remaining three pages in the conduct of its review.
Counsel for the first respondent accepted that the critical issue was whether the three pages could be said to be immaterial in the circumstances of the present case. The Court was taken to the reasoning of the Tribunal in relation to its concerns about the credibility of the applicant and her limited knowledge of the financial affairs of the sponsor, the nature of the operation of the joint account, and a separate mortgage account that the sponsor had relating to his parents’ home.
In relation to the repaying of the mortgage, the Tribunal reasoned that it was significant that the sponsor was paying a mortgage for his parents’ home when the applicant claims he was living with her at Greenfield Park address and that the parties were unable to accumulate any savings of their own. The reasoning in support of the finding that the applicant and her sponsor never lived together appears to incorporate the event surrounding the ADVO because paras.54 and 55 provide as follows:
54. The Tribunal has taken into account the oral evidence provided by the applicant as well as the documents indicating that the sponsor had used the Greenfield Park address to receive correspondence, including from Westpac, NSW Roads and Maritime Services and Centrelink. The Tribunal has also considered the witness statement that the applicant provided at Fairfield Police Station on 6 February 2015. In that statement the applicant asserted that she had been in a domestic relationship with her sponsor for four years. However, there were a number of inconsistencies between the information in that statement and the evidence that the applicant provided at hearing. Most notably, in the statement the applicant stated that she contacted police on 24 January 2015 after the sponsor became verbally and physically aggressive towards her after he demanded money from her and she refused. She stated that the sponsor moved to his parents’ home in Canley Vale on 24 January 2015. At the hearing the applicant told the Tribunal that her landlord had contacted the Police on 24 January 2015. She also initially told the Tribunal that the sponsor had left the home four months previously, later saying he had left on 24 January 2015.
55. The applicant provided a statutory declaration from her landlord, which stated that the applicant and her sponsor were sharing a room at the landlord’s home and that he sees them every day. The applicant’s landlord attested to the genuineness of the parties’ relationship, but he did not complete all details on the supporting witness form (Form 888), including his occupation, contact details or how long he had known the parties. The Tribunal has taken into account that evidence, but after considering the totality of the evidence before it, in particular the internal inconsistencies in the applicant’s oral evidence and the inconsistencies between the applicant’s oral evidence and the documents provided, the Tribunal is not prepared to accept that the applicant and her sponsor lived together at the Greenfield Park address, or at any other premises, after their marriage. Consequently, the Tribunal does not accept that they ever shared household chores.
The evidence of the applicant in relation to the potential inconsistency identified by the Tribunal was an inconsistency as to whether the spouse had left on 24 January 2015 or had left four months previously. Even if it were accepted that the inconsistency was one which undermined the credit of the applicant, either version on the evidence of the applicant if accepted would still have supported a living together of the applicant and the sponsor.
There was no analysis underlining the conclusion by the Tribunal as to the applicant and sponsor never living together after their marriage other than the adverse credit finding in relation to the applicant based on alleged inconsistencies and the other evidence referred to by the Tribunal in relation to the applicant’s knowledge of the sponsor’s daughter and of the sponsor’s financial affairs. It was in these circumstances that the information relating to the ADVO clearly manifested a materiality in the reasoning process of the Tribunal.
Counsel for the first respondent identified that the unsigned statement of the applicant which was before the Tribunal contained information to the effect that the applicant contacted the police for assistance. It further contained information that the police attended and removed the sponsor from the property, and that that material was before the Tribunal. That information before the Tribunal was in an unsigned statement. Page 5 of the ADVO, being one of the seven pages that the Tribunal did not take into account, identified that with the benefit of the assistance of the Vietnamese interpreter a signed statement was obtained from the applicant.
I accept the first respondent’s contention that the first alleged critical paragraph of the missing material does refer to the applicant contacting police, the same as the statement in evidence before the Tribunal, and that the said first alleged critical paragraph of the missing material does identify that the police attended and removed the applicant, the same as the unsigned statement in evidence. However, the applicant contacting the police was a matter of focus in the reasoning of the Tribunal in para.63 referred to above. The Tribunal had earlier identified the applicant’s evidence that the landlord had contacted the police, and this was referred to in both para.29 and para.54.
The statement in the third sentence of the Tribunal’s reasons in para 63 that there is no independent evidence to indicate the police were actually called to the parties’ home in January 2015 appears to be reasoning that rejects the unsigned statement contention by the applicant at p.308 and also the evidence the applicant gave in that regard. The fifth page of the seven-page document to which the Tribunal did not have regard in the first alleged critical paragraph was capable of being taken into account by the Tribunal as reinforcing an actual attendance by the police to remove the sponsor.
Counsel for the first respondent put that the independent evidence to which the Tribunal was referring was something more than merely assertions that one might find in p.5 of the interim apprehended domestic violence order. That concept of independent evidence referred to in para.63 appears linked to the issue raised by the Tribunal as to who had contacted the police. The fact alleged in the second alleged critical paragraph of the missing material was an adoption to the police of that unsigned statement by the applicant. In these circumstances there is an overlap with the adverse credibility reasoning of the tribunal in relation to the applicant in para.63 to which that second alleged critical paragraph was capable of being materially relevant and having an impact.
It is in these combined circumstances of both alleged critical paragraphs that I find that the reasoning of the Tribunal was such that the missing three-page document to which the Tribunal did not have regard was material. I find that the three-page document was material in relation to the fact-finding process by the Tribunal in relation to whether the applicant and sponsor ever living together, in the fact-finding process in relation to the applicant’s credit, the fact-finding process as to what occurred in relation to the attendance by the police and the removal of the sponsor from the premises on 24 January 2015, and the fact-finding process in relation to evaluating the applicant’s evidence in relation to the alleged inconsistency of the sponsor having moved out four months earlier and as to who called the police.
In the context of the statement to the police that the parties had been in a domestic relationship for four years, counsel for the first respondent did take the Court to the financial documents in the sponsor’s name in respect of which the mortgage account being paid by the sponsor for the benefit of his parents. These records showed one particular bank records were being sent to the Greenfield Park address and also a joint account with a different bank in relation to the sponsor were sent to the same address. The use of that same address by the sponsor was consistent with the applicant’s evidence.
It is in these circumstances that I find that there was jurisdictional error by the Tribunal not having regard to the missing three pages of the apprehended violence order that the applicant intended to be before the Tribunal in the conduct of its review.
I have taken into account the submissions made by the first respondent in relation to what was said in Singh v the Minister for Immigration and Border Protection [2015] FCA 558 at [33]. That case can be distinguished from the present because on the reasoning of the Tribunal identified above the missing three pages of the seven page document was not irrelevant material. I have also taken into account what was said in Kaur v the Minister for Immigration and Border Protection [2014] FCA 1251 at [43]. In this case the question of whether there was a genuine spousal relationship involved critically the issue of whether the parties did ever live together after their marriage, and for the reasons that I have given, the Tribunal was in this case in a position where it was not able to properly conduct the review in respect of the applicant’s case due to not having before it the missing three pages of the apprehended violence order. For the reasons I have given, I am satisfied that those missing pages in this case were material. The Court is satisfied that there was jurisdictional error by the Tribunal not taking into account the missing three pages in the conduct of the review. The applicant is entitled to relief in the nature of mandamus and certiorari.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 31 August 2015
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