Truong v Minister for Immigration
[2013] FCCA 1965
•3 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRUONG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1965 |
| Catchwords: MIGRATION – Application for judicial review of Migration Review Tribunal decision – extensive particulars of alleged jurisdictional error – all such particulars pointing to adverse factual findings or otherwise misconceived – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | DUC THAO TRUONG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 347 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 17 October 2013 |
| Date of Last Submission: | 17 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2013 |
REPRESENTATION
| The Applicant: | In person (assisted by a Vietnamese interpreter) |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application filed 20 March 2013 be dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 347 of 2013
| DUC THAO TRUONG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 20 February 2013, by which the Tribunal affirmed a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa).
The applicant’s application filed 20 March 2013 asserts one ground, namely that “The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction”. There are particulars numbered a to i inclusive with which I shall deal in due course.
The applicant’s affidavit filed in support essentially repeated word for word the grounds and particulars set out in the application, and the contentions of fact and law filed by the applicant on 8 August 2013 likewise essentially repeat the matters in the grounds of application.
All concerned agree that the only issue before the Tribunal relevant to these purposes was whether or not the applicant was in a spousal relationship with his visa sponsor. The Tribunal asserted at Court Book (“CB”) 339 in paragraph 13 that:
“In the case of both married and de facto relationships, the Tribunal must be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis.”
In my view that is a correct enunciation of the relevant applicable, and critical, principle.
The Tribunal’s decision commences by setting out a Review of the Application and the Relevant Law. As I have indicated there is no dispute about what the relevant law is, and that the passage cited sufficiently indicates what the relevant test is.
The Tribunal paraphrased the Claims and Evidence, the delegate’s decision and the Application for Review at CB 340-341, and paraphrased the evidence given at the Tribunal hearing at CB 341-344. At CB 344-351 the Tribunal set out the terms of two s.359A letters sent to the applicant together with the applicant’s responses thereto.
CB 351-356, the Tribunal set out its Findings and Reasons. The Tribunal accepted that the applicant and his visa sponsor were married (paragraph 52, CB 351).
The Tribunal at paragraph 53:
“next considered whether the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis.”
The Tribunal had regard to all of the circumstances of the relationship including evidence of the financial and social aspects and the nature of the applicant’s and sponsor’s household and their commitment to each other.
The Tribunal traversed matters to do with the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature and the parties’ commitment to each other in some detail.
It is clear that the Tribunal formed adverse views in the ultimate in respect of each of these matters. These matters, which included significant reservations about the way in which the applicant gave evidence to the Tribunal (see paragraph 67 CB 354) was summarised by the Tribunal at paragraphs 68 and 69, as follows:
“68. There is information before the Tribunal which supports the claim that the review applicant and the sponsor have a genuine commitment to each other and see their relationship as long term:
·they have submitted a large number of photos which show them in various social settings with different groups of people, particularly in Vietnam;
·they have persisted with the visa application process since 2004;
·the statement from the landlord attesting that they have lived together since 2007; and
·numerous documents are addressed to them at the addresses where they state they have lived together.
69. This evidence must, however be weighed with other information which is before the Tribunal:
·the sponsor makes frequent trips to Vietnam without the review applicant, and both parties told the Tribunal that she needs to travel to see friends and family because she is stressed. This indicates to the Tribunal that the sponsor does not seek emotional support and comfort from the review applicant as is usual in a genuine spousal relationship. They are frequently apart and the sponsor’s primary emotional attachments appear to be outside the spousal relationship;
·there is conflicting information from the parties regarding the financing of the significant overseas travel;
·there is limited independent evidence that the parties share finances and/or make joint financial decision;
·there is little independent evidence, apart from photos, that supports the parties claims that they present to others socially as a couple; and
·there is no evidence that persuades the Tribunal that the sponsor’s adult children consider the parties to be in a genuine spousal relationship.”
The Tribunal also made reference to anonymous allegations made over time to the effect that the applicant and the visa sponsor were not in a spousal relationship, and said at paragraph 70 (CB 354):
“The Tribunal has been mindful that the allegations received by the Department, that the relationship between the review applicant and the sponsor is contrived to secure a positive migration outcome, were anonymous allegations and therefore cannot be tested. However the Tribunal has also taken into account the anomalies identified by Department officers in a visit to the restaurant in December 2010.”
The Tribunal went on to deal with those matters further and came to the conclusion that the applicant and the visa sponsor were not living in a shared life as husband and wife to the exclusion of all others and accordingly denied the visa application.
It will be readily apparent that I have paraphrased in a very broad way the approach the Tribunal took. It is sufficient to say in a general way that in my view the findings made by the Tribunal as set out in its decision were at the very least open to it on the materials filed. Having made that general comment I return to deal with each of the matters asserted by the applicant.
Particular a
The tribunal has erred in its interpretation of r.1.15A and clause 820.211 (6) in that there was ample evidence for the conclusion that the applicant and sponsor had a mutual commitment to a shared life as husband and wife, that the relationship was genuine and continuing and that the couple did live together.
This is a broad factual assertion which, as it were, traversed the entirety of the Tribunal’s reasons. I would respond to it with an equally broad brush assertion. As I have said, the findings of the Tribunal seem to me to be open to it on a reading of the materials in the case.
Particular b
It was not a relevant consideration that the applicant was aware as to who supported his wife’s travel.
In my view, this criticism is incorrect. There was uncontested evidence that since the marriage in 2007 the visa sponsor had been to Vietnam 15 times for extended periods and the applicant only 3. The applicant asserted that the visa sponsor’s travel was paid on his credit card, but the visa sponsor said that her travel was paid by her family. The Tribunal put the applicant on notice of the inconsistencies between the two accounts in the s.359A letters, and the Tribunal did not accept what the applicant said. At paragraph 55 (CB 352) the Tribunal said:
“The Tribunal found significant differences in the explanation given by the review applicant and the sponsor in relation to the cost of overseas travel. The Tribunal has considered the review applicant’s response on this matter in his response to the letter sent by the Tribunal on 16 November 2012, however the Tribunal does not accept that the review applicant would not know, or would not consider it significant, that his father, brother-in-law and sister support his wife’s travel.”
Inconsistencies in evidence are plainly a matter going to the credibility of the parties. This is perhaps particularly the case in circumstances where the amount of travel involved was extensive and likely to have presented itself forcibly to the attention of the visa applicant. The Tribunal’s conclusion that parties living in a marriage would be likely to know about something as important as the costs of extensive overseas travel, in circumstances where on their own case they were impecunious and lacking in funds, was entirely open to it.
Particular c
It is an irrelevant consideration that the wife (sponsor) travelled numerous times to see her family in Vietnam and this signified she was not getting emotional support from the husband (applicant).
Once again, in my opinion, this criticism cannot be sustained. The Tribunal was aware that the visa sponsor had made 15 trips overseas since the marriage in 2007 and that the applicant had only travelled 3 times during the same period.
The Tribunal’s finding relevantly set out at paragraph 69, CB 354 was:
“the sponsor makes frequent trips to Vietnam without the review applicant, and both parties told the Tribunal that she needs to travel to see friends and family because she is stressed. This indicates to the Tribunal that the sponsor does not seek emotional support and comfort from the review applicant as is usual in a genuine spousal relationship. They are frequently apart and the sponsor’s primary emotional attachments appear to be outside the spousal relationship.”
In my opinion the Tribunal’s observations were entirely accurate. The Tribunal was considering whether the parties were in a genuine marriage or not, and the fact that that visa sponsor spent so much time overseas could reasonably be interpreted at the very least to suggest that the visa sponsor’s primary emotional attachment was not to her purported husband. This was clearly a matter capable of being relevant in deciding whether the marriage was a genuine one.
Particular d
The tribunal should have taken into the account the evidence of the landlord Mr. Tan Thanh.
The Tribunal was well aware of the evidence of the parties’ landlord. The Tribunal said at paragraph 60, (CB 353):
“The review applicant states that he and the sponsor have lived together in a room subleased from a friend’s rental property(s) since February 2007 and he has submitted a letter from the landlord in support of this claim. The Tribunal concludes that the landlord, Mr Tan Thanh, is not an independent witness as he is a long-standing family friend and it is claimed that he has provided the parties with a loan of $9000. The Tribunal is not prepared to give this letter from the landlord document sufficient weight to overcome its broader concerns with the evidence taken from the review applicant and the sponsor.”
The Tribunal went on to say, under the same heading, “The nature of the household”:
“61. The parties have told the Tribunal that they share the housework however they have provided no insights into their domestic activities. If a couple has lived together for more than five years they should be able to talk in detail about their household activities and provide robust evidence about their household arrangements. For these reasons, the Tribunal is not satisfied that the review applicant and the sponsor have shared household and associated domestic activities.”
It is clear that the Tribunal did take the landlord’s letter into account. The Tribunal had reservations about it which in my opinion were open to it on the materials, and in any event, the landlord’s letter was weighed in the balance of all the evidence as the Tribunal was entitled to do. There was ample evidence, contrary to the applicant’s position, to support the Tribunal’s finding.
Particular e
The tribunal should have taken into account the fact they resided in a room and therefore household and domestic activities were of less significance.
This assertion in substance says that the Tribunal should have come to a different conclusion on the evidence. In my opinion the Tribunal’s finding that the parties as a couple for five years could reasonably have been expected to have had evidence of their domestic activities was open to it on the materials. It is a common-sense observation about an ordinary facet of any marriage. The fact that the applicant and the visa sponsor were said to have lived in one room would not logically detract, at the very least in its entirety, from the force of the Tribunal’s propositions.
Particular f
The tribunal has automatically assumed that because the children of the sponsor gave no supporting evidence, then it must draw an adverse inference.
The Tribunal dealt with these matters relevantly at paragraphs 63 to 66 (CB 353) as follows:
“63. Neither party mentioned their interaction with the spouse’s children until asked specifically about this by the Tribunal. Both parties appeared reticent to discuss the sponsor’s children although the review applicant now works for the sponsor’s daughter and the Tribunal was told that the children live quite close to the review applicant and the sponsor.
64. It is the Tribunal’s view that the review applicant has not provided a satisfactory reason for the inconsistent accounts given by him and his wife regarding their activities on New Year’s Eve 2010. The Tribunal concludes from this inconsistency that the parties were not together on this date and that they do not socialise together in a manner that is characteristic for a couple in a genuine spousal relationship.
65. The Tribunal considers that the sponsor’s children would be well placed to attest to the genuine nature of the relationship between their mother and the review applicant, however they have not provided supporting statements and they did not attend the hearing to give evidence.
66. It is up to the review applicant to make his case. Given the limited amount of evidence, the Tribunal cannot be satisfied that the review applicant and the sponsor plan and share social activities and present themselves to others as a couple in a genuine and ongoing relationship.”
This passage itself follows an earlier account of inconsistent evidence given by the parties about whether or not the children were with them on New Year’s Eve 2010, and an earlier explanation given by the review applicant in his reply to the s.359A letter.
In my view, the Tribunal’s finding that the parties were reticent to discuss the visa sponsor’s children was plainly open to it as an assessment of the demeanour of the visa applicant and the visa sponsor. The scepticism of the Tribunal in circumstances where the applicant works for the visa sponsor’s daughter is in my view understandable and reasonable. While the finding that the parties were not together as they had said they were on New Year’s Eve 2010 might or might not lead every person who considered the matter to the same conclusion as that of the Tribunal, the finding was one that was open to the Tribunal and does not suggest jurisdictional error. Furthermore, the Tribunal’s finding that the children’s failure to be called was a relevant consideration was in my view unexceptionable. The children were clearly not unavailable to give evidence as they live in the Geelong area, and one of the children actually employs the visa applicant.
Particular g
The tribunal did not ask the applicant or the sponsor about the nature of the relationship between the applicant and the sponsor’s children.
It is not possible to evaluate this matter save to the extent indicated in the passage earlier set out from paragraphs 63 and following. It should be noted that the Tribunal is correct to say at paragraph 66, “It is up to the review applicant to make his case”. All the Tribunal did was to ask in the s.359A letter about inconsistent versions of the events of New Year’s Eve 2010 involving whether or not the visa sponsor’s children were there. This was said to go to whether or not the parties had a shared knowledge of the social and financial aspects of the relationship which is consistent with a genuine spousal relationship. That, in my opinion, was a perfectly proper characterisation. In the circumstances, it was not incumbent upon the Tribunal to ask the questions the visa applicant posits, even if they were not asked.
Particular h
The tribunal has taken into account an irrelevant consideration that is the anonymous allegations received by the department. They are anonymous and therefore should not even be mentioned in the decision, as it has no bearing.
In fact, while the Tribunal did ask questions about the anonymous complaints made against the applicants over time, it is clear that the Tribunal was properly cautious about the weight it gave such matters. The mere fact that the allegations were anonymous does not of course make them irrelevant. After all, somebody wanted to bring to the attention of the relevant authorities a proposition that the visa applicant and visa sponsor were not in a genuine relationship.
What the Tribunal said as earlier indicated was this (paragraphs 70 - 73, CB 354 - 355):
70. The Tribunal has been mindful that the allegations received by the Department, that the relationship between the review applicant and the sponsor is contrived to secure a positive migration outcome, were anonymous allegations and therefore cannot be tested. However the Tribunal has also taken into account the anomalies identified by Department officers in a visit to the restaurant in December 2010.
71. The Tribunal considers that the Department’s visit to Mr Tan’s restaurant, and to the house claimed to be the residence of the review applicant and the sponsor, identified evidence that casts doubt on the claimed spousal relationship between the review applicant and the sponsor.
72. The Tribunal has provided the review applicant with 2 opportunities, at the hearing and in 2 letters inviting his comment on information post-hearing, to provide an explanation for these anomalies. The Tribunal has not found his response to these matters to be convincing.
73. At the hearing both the sponsor and the review applicant were evasive when asked by the Tribunal about their relationship with Mr Tran. The Tribunal does not accept that the parties do not know Mr Tran’s current whereabouts given that: the sponsor was previously married to him and has maintained contact with him since their divorce; the review applicant worked for him in his restaurant; Mr Tran sold his business to the sponsor’s daughter; and the Tribunal heard that Mr Tran has a deep affection for and has maintained contact with the sponsor’s children since the divorce.
When one reads the Departmental interviews, which are in the Court Book, it is fair to say that the Tribunal’s finding - that the 2010 investigation by Departmental officers produced anomalies - was doing no more than reaching a conclusion clearly open to it on the materials. I would myself have shared the Tribunal’s point of view.
The Tribunal was careful not to take the allegations as fact, but in paying regard to the evidence of the departmental officers and the responses of the applicant and visa sponsor when pressed about Mr Tran it is clear that the Tribunal did not fall into error.
Particular i
It is irrelevant that the tribunal gave the applicant 2 letters inviting his comment. The first letter was received and answers were given in response to the allegations. The second letter was a repeat of the same questions and the applicant relied upon the answers he had already provided.
It is true of course that the applicant did not respond to the second letter which was sent to correct a minor error in the first one. Nonetheless, the Tribunal was right to say that it had given the applicant two opportunities to comment and right to note that the applicant had not provided satisfactory responses.
Conclusion
Although the matter is put somewhat broadly, I am of the clear view that the finding of the Tribunal reached was well and truly open to it on the evidence before it. The applicant’s criticisms are all in substance either misconceived and/or merits review. The Tribunal’s finding was clearly open to it.
Before the Court, however, the applicant advanced some other considerations. A number were simply factual assertions that the Tribunal had got matters wrong. He did also suggest, however, that the Tribunal had been prejudiced against him because he was an agent. The applicant did not point to any material suggesting that he was an agent. As I would understand the materials the applicant worked in a restaurant. Nonetheless, I endeavoured to clarify the matter with the applicant, and if I understood him correctly he was suggesting, as I understood it, that in some fashion he was an agent (presumably a migration agent or an agent for other persons in some way related to Migration Tribunal matters) and this might have prejudiced the Tribunal against him. It may be said shortly that there is nothing to support this proposition in the materials.
The applicant also said that the Tribunal had not examined or considered his position, and this was likewise, in my view, an utterly unsustainable assertion.
The applicant asserted that he wants to put more material before the Tribunal on a re-hearing, and while that may well be so it is immediately apparent that that does not give rise to jurisdictional error on the part of the Tribunal that made the decision under review.
The applicant said that he would like to have a fair go in having his case considered, but in my view there is nothing to suggest for a moment that he was not accorded such an opportunity.
In all circumstances the application has no merit and I will order that it be dismissed with costs. I will also change the name of the Minister in the proceeding to reflect his new title.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 3 December 2013
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