Vo v Minister for Home Affairs

[2019] FCCA 844

FEDERAL CIRCUIT COURT OF AUSTRALIA

VO v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 844

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.376; 359; 359A, 360

Cases cited:

NAFF v The Minister for Immigration (2004) 221 CLR 1

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: THI KIM CHUNG VO

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINSTRATIVE APPEALS TRIBUNAL

File Number: BRG 915 of 2018

Judgment of: Judge Vasta

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Brisbane

Delivered on: 18 March 2019

REPRESENTATION

Counsel for the Applicant: Mr L.J. Karp

Solicitors for the Applicant: T Lawyers

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 3 September 2018 and amended on 5 December 2018 are dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 915 of 2018

THI KIM CHUNG VO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 9 August 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant a partner visa.  On 3 September 2018, the Applicant filed an originating application in this Court asking this Court to review that decision of the AAT.  On 5 December 2018, the Applicant filed an amended originating application. 

2. The facts in the matter are, in short compass that the Applicant came to Australia in 2013 with a student visa.  She subsequently abandoned those studies and she married Mr Pham who is her sponsor for the partner visa. The Tribunal had to determine whether the Applicant and Mr Pham were in a genuine spousal relationship. 

3. It noted that, in October 2013, Mr Pham, having graduated from high school, began working part-time at a nail salon owned by Ms Vo’s sister at the Aspley Hyper Market on the north side of Brisbane.  On 5 November 2013, Ms Vo arrived in Australia.  She was aged 24 and she was the holder of a student visa for the higher education sector, but the Applicant did not pursue those higher education studies.  She began training at her sister’s nail salon.  It was there that she met Mr Pham. 

4. In early 2014, the Applicant commenced an English language study and Mr Pham enrolled in a diploma course at TAFE.  On 22 June 2014, the parties travelled to Melbourne together and agreed to marry and on 21 September 2014, the Applicant and Mr Pham were married in Brisbane. 

5. Traditional celebrations took place at the Applicant’s sister’s house.  The Applicant claimed she then moved into Mr Pham’s parents’ house.  On 18 February, the Applicant lodged a partner visa application.  She was granted a bridging class visa.  In mid-2015, she ceased study.  On 28 June 2016, her student visa was cancelled together with her bridging visa.  She was unlawful non-citizen from 22 June 2016 to 27 September 2016.  On 28 September, after attending a departmental visa interview, she was given a bridging visa. 

6. The delegate refused to grant the Applicant a partner visa.  That occurred on 1 February 2017 and led to the Tribunal hearing. 

7. The Tribunal then went through all of the claims and came to the conclusion that the parties do not have joint assets, joint liabilities, nor do they pool their financial resources.  The Tribunal was not satisfied that the parties live together.  The Tribunal was not satisfied that the social aspects of the relationship were commensurate with the relationship that they say they had and lastly, that the Tribunal was not satisfied there was a commensurate level of mutual commitment to each other.  Having come to those conclusions, it was not difficult for the Tribunal to come to the final conclusion that the original decision should be affirmed. 

8. There was a somewhat interesting occurrence in the chronology leading up to the affirming of the decision.  The Tribunal has mentioned this in paragraphs 27 to 31 of the reasons, which I will now read into the record.    

   27. Following the review hearing on 27 March 2018, on 27 June 2018 the Tribunal sought to provide the applicant with an extended opportunity to address any concerns or issues arising from the evidence before it.  The Tribunal invited the applicant to a second hearing scheduled for 19 July 2018. 

   28. On 27 June 2018 Ms Vo’s registered Migration Agent Ms Pamela Tieu wrote to the Tribunal requesting that the Tribunal delay this second hearing of 19 July to a date not before mid-September 2018, on the basis that she was on maternity leave until then and was the only person in the practice who could represent the applicant, having had carriage of the matter since 4 February 2017. Ms Tieu also specified three dates on which she would not be available in September 2018. 

   29. On 28 June 2018 the Tribunal responded to the applicant stating that having considered the request, the applicant was referred to section 366A of the Act, which provides that an applicant is entitled to have a person assist them at the hearing but that, unless there are exceptional circumstances, the assistant is not entitled to present arguments or address the Tribunal. It noted that Ms Tieu was not a sole practitioner and that it did not consider the circumstances exceptional. However in the light of Ms Tieu’s carriage of the matter, the Tribunal said it would cancel the second hearing and put its concerns to the applicant in written form under section 359A of the Act.

   30.    On 4 July 2018 the Tribunal wrote to Ms Vo, putting certain information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason or a part of the reason for affirming the decision under review.  The Tribunal stated it had not made up its mind about the information. The information put to the applicant concerned issues on which the Tribunal invited comment or submissions. 

   31. On 18 July 2018 the applicant responded with a statutory declaration commenting on the information in the Tribunal’s letter. A summary of the applicant’s responses is reflected below, after each issue raised. Those issues were:

   a. The validity of a certificate issued under s376 of the Migration Act. Ms Vo did not comment on the validity of the certificate;

   b. The gist of information covered by the certificate that went further than the information shared with the applicant under s359AA at the hearing. This concerned a claim that the applicant was living at the home of her sister at Gladys Street Doolandella, where her brother also lives and that a payment of $70,000-80,000 had been paid to the sponsor in instalments of 50 per cent for the purposes of seeking a visa: Ms Vo commented, in summary, that she and her sponsor had addressed this at the hearing, in that they believed their colleagues or fellow students had sought to discredit them before the Tribunal, and this should not outweigh their sworn evidence and that of their witnesses who claimed they had seen them living together;

   c. Transactions in the Westpac joint bank account showed approximately 90 per cent of transactions were made at Aspley, on the north side of Brisbane, and the remaining 10 per cent were made at Inala, on the south side. The Tribunal noted lnala is closer to Doolandella than to Springfield Lakes where the couple claim to live together. The Tribunal said and this might tend to suggest that Ms Vo is rarely in the suburb where she claims to cohabit with her husband: Ms Vo commented, in summary, that she works at Aspley therefore she makes many transactions there, and that the Vietnamese community preferred to transact at Inala, in cash; and further, she disputed the Tribunal's assessment of the spending pattern breakdown within that 10 per cent of transactions on the joint account that are not made at Aspley;

   d. That the sponsor confined his financial transactions and income entirely to his private bank account and this might support a finding that the couple do not pool their resources: Ms Vo commented, in summary, that the parties pooled their resources even though their bank accounts were by and large separately operated but this was a typical set of arrangements for a young married couple.

   e. That the parties had not provided written evidence they jointly paid the $100-$150 amount they claim to pay to the sponsor's parents for residency: Ms Vo commented, in summary, that they paid amounts to Mr Pham's parents in cash; Mr Pham submitted his mother had provided a declaration to support that a payment is made.

   f. That the sponsor's evidence that he departs his parents' home with Ms Vo at 8.30am to drop her off at group transport at Inala does not align easily with the salon's opening hour of 9am, the most likely start time for staff: Ms Vo commented, in summary, that she did not start work until 10am because the salon was quiet between 9am and 10am;

   g. That the Tribunal did not have before it convincing evidence that the applicant's parents were not prepared to continue to fund the study for which she came to Australia and then did not pursue, as is reflected in the Provider Registration and International Student Management System (PRISMS) database: Ms Vo commented, in summary, that her circumstances had changed since she came to Australia and met and married her husband and that the couple did not want to rely on her family to fund her study now she was married; and, that if she were granted a subclass 801 Partner visa her university fees would be significantly less;

   h. That the Tribunal did not have before it convincing evidence as to why she did not understand that her Bridging visa had been cancelled at the same time as her student visa, rendering her unlawful for three months until contacted by the Department: Ms Vo commented, in summary, that she was unaware of the Bridging visa issues because the cancellation letter was sent to her home address (where she claims to live with her husband) and not to her migration agent.

9. The only ground of this application is this: 

   1. The Tribunal erred by failing to afford the applicant a hearing as provided for by s. 360 of the Migration Act.

   Particulars

   (a) The Tribunal having held one hearing on 27 March 2018, decided to issue an invitation to a further hearing to be held on 19 July 2018.

   (b) The Tribunal having learned that the applicant’s solicitor was on maternity leave until September 2018, cancelled the further hearing and instead issued a letter purportedly under s. 359A of the Migration Act;

   (c) That letter purportedly issued under s. 359A of the Migration Act, could not lawfully substitute for a hearing under s. 360.

10. The argument was developed by Mr Karp very helpfully in this way. Pursuant to s.360 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

11. If one looks at certain extracts of the transcript, it may be seen that there were time restraints on this hearing. These are seen at questions 155, 764 and 1045. At question 963, the interpreter apologies for having to rush because, it would seem, that the interpreter could not stay for long. Therefore, if there were issues that were not covered, s.360 mandates that there should be a further hearing.

12. It is submitted that this is why the Tribunal issued the invitation for another hearing.  That seems to follow with the dicta in the matter of NAFF v The Minister for Immigration (2004) 221 CLR 1. In that case, which revolved around the Tribunal member telling the Applicant that they would send some questions to the Applicant and failing to do so, the Court said this at paragraph 32:

    32. It is possible that the reason why the tribunal member failed to send the promised questions was that, on reflection, she thought that everything she had required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant’s statement was not crucial in deciding the review against him.  If either of these explanations, or any other explanation, existed, it is to be expected that the tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision.  She did not do so.  It is probable, when the workload under which the tribunal labours is borne in mind, that the tribunal member did not send the promised questions because she had forgotten or overlooked the fact she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based.  It would not be complete until the steps which she had thought could remedy its defect had been carried out.  The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.

13. When the Applicant asked for an adjournment, the Tribunal purported to get around that fact that they needed another hearing by asking the Applicant to answer queries pursuant to s.359A of the Act.

14. The submission follows then that, when one analyses the supposed s.359A letter, it was seeking information pursuant to s.359 and was not a letter pursuant to s.359A of the Act. Therefore, because it is not a letter pursuant to s.359A of the Act, the Tribunal was obliged to hold a further hearing. In not holding the further hearing, the Tribunal has fallen into jurisdictional error.

15. To assess these submissions, one first has to look at the legislation. Section 359A states as follows:

    Information and invitation given in writing by a Tribunal

    (1) Subject to subsections (2) and (3), the Tribunal must:

    (a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

    (b) ensure as far as reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c) invite the applicant to comment on or respond to it.

    (2) The information and invitation must be given to the applicant:

    (a)  except where paragraph (b) applies--by one of the methods specified in section 379A; or

    (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359A

16. Subsection (4) says though this:

    (4) This section does not apply to information: 

    (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member…

17. One then goes to s.359 of the Act which reads as follows:

    The Tribunal may seek information 

    (1) in conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on review. 

    (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. 

    (3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

    (a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

    (b) the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (4) if an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

18. When one looks at these sections, it would seem that s.359 is a precursor to s.360 of the Act. That is, s.359 allows the receipt of information which is then to be used at a hearing under s.360 of the Act. Therefore, it is important to look at the letter that was sent. That letter appears at page 377 of the Court book. It reads relevantly:

    … In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information. 

    The particulars of the information are…

19. There are four areas: the first one is an allegation that was given as information pursuant to a s.376 certificate that had already been laid out to the Applicant during the hearing.

20. But the Tribunal said in the hearing:

    … You were provided with the gist of the information covered by the certificate and given an opportunity to comment on it…

    The Tribunal wishes to exercise its discretion and provide you with further detail from this information.

    The information given to the department in February 2016 claims that that you are living at the home of your sister at 18 Gladys Street, Doolandella, where your brother also lives.  Further information given to the department in July 2016, claims your sponsor entered into your relationship for a payment of $70,000-$80,000, paid in two instalments of 50 per cent, and that you and he were family friends who did so in order to fraudulently obtain a visa.  You are invited to comment on the information.

21. The letter then says:

    The Tribunal has a number of other concerns arising from your evidence on which it invites you to comment.

    Tribunal Concerns

    1)     Westpac joint bank account Transactions

    which relate to where the Applicants were seen to be conducting their financial transactions. 

22. The Tribunal said during that giving out that information:

    … This might tend to suggest to the Tribunal that you are rarely in the suburb where you claim to live with your husband.  At your hearing, the Tribunal asked your husband if he used the joint account.  He said it was you who uses it, and mainly in Aspley, because that it is where you work.  He submitted that on the south side, people transact in cash.  He said he did not contribute his income to the joint account because: “When I working at Rose Nails I contributed, but now, no, I am not working. My income now goes into my personal bank account and is mostly used for my expenses such as car insurance and payments and other personal expenditures.”

23. The Tribunal then said: 

    You claim that you have agreed to jointly contribute to a payment to your parents-in-law for household expenses.  You have not provided supporting evidence of how you pool your funds, or that you pay this amount regularly.

24. That concern, obviously, went to whether it was that the financial arrangements were such that one would expect those to be the financial arrangements entered into by two people who were in a genuine spousal relationship with a mutual commitment to each other. 

25. The second aspect was that the sponsor submitted that his usual time of departure for university was 8.30 am, but he submitted that he drives the Applicant to Inala on work days where she is picked up by group staff transport. The Tribunal further said this:

    The Tribunal estimates the time required to travel from your home address to Inala is 15-20 minutes.  By this estimate, you could not meet your group transport until at least 8.45am, and then you would need to travel to Aspley to work.  This has significance because it suggests you and other staff members do not arrive at your workplace until approximately 9.30am and this could be later than the time at which the salon opens.  This would suggest that your husband does not drop you at the departure point as claimed, and this tends to undermine the credibility of your evidence in relation to your household arrangements and your cohabitation status.

1. The last aspect was the immigration history where the Tribunal looked at the Applicant coming here on a student visa and noted that the course that she had come here to study was cancelled.  The Tribunal said:

   … You have given two reasons why you did not pursue your studies: that you did not want to ask your parents to provide tuition fees, and you wanted to support your husband by working.  You have not provided supporting evidence that these were your motivations or that your family would not have been prepared to support you a student, as they had clearly planned to do when you applied for entry to Australia.  This is a concern to the Tribunal because it might suggest instead of coming to Australia to study, you instead wanted to create conditions in which you could achieve permanent residency…

2. The Tribunal then asked about the fact that the Applicant had her student visa and her bridging visa cancelled at the same time and was unlawful for a period. The Tribunal was concerned that the Applicant might knowingly have become unlawful after she married the sponsor and chose not to apply for a further bridging visa in order to extend her stay in Australia. The Applicant suggested that when one looks at this letter, it could not have been a letter pursuant to s.359A of the Act, because s.359A is concerned with information given in writing by the Tribunal.

3. The Applicant points to authority of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. At paragraph 18, the Court said this:

   Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of  para (4) of s 424A(1).  Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information” does not encompass the tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. 

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process…

4. The submission is then that what the Tribunal has asked for in these four matters is not information. Alternatively, or in some cases in addition to this, the submission is that this information, if it is information, is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member. Therefore, pursuant to ss.359A(4)(a), it is excluded from s.359A of the Act.

5. The first question to be answered is, is the Tribunal giving to the Applicant “information”? The first part of the letter deals with the information that it had received through what has been called a “dob in” procedure; that is, someone has contacted the department on condition of anonymity and said that the Applicant is not living with the sponsor, but living with her sister and then later on, whether it be the same person or a different person, has given information that this was a financial transaction in which the sponsor was paid $70,000 to $80,000 to do his part, and was paid in two instalments.

6. It seems to me that that is quite clearly “information” as that term is meant to be used in s.359A of the Act. It is not subjective musings. It is not thought processes. It is clear information upon which the Tribunal wishes the Applicant to comment because it could be the reason, or part of the reason, for affirming the decision.

7. The second matter with regard to the Westpac joint bank account is, it seems to me, again, not musings.  What it is, is giving to the Applicant “information”, which is the statement given by the husband as to what he says about the financial transactions. This could be part of the reason for affirming the decision that is under review, because the account that he gives is different to the Applicant’s and it would, or could, be seen by the Tribunal as being indicative of the fact that they are firstly, not pooling their resources and secondly, not living together.

8. The fact that the Tribunal has, at the end of that, said, “You have not provided supporting evidence of how you pool your funds…” does not derogate from the fact that, at the heart of it, it is asking the Applicant to comment about information given from the sponsor that differs from hers.

9. The third aspect is the departure times in the morning. Again, this is the Tribunal giving “information” which is that the husband has said that he departs at 8.30 am, but drops the Applicant off on his way.  The distances from Springfield Lakes to Inala, and then from Inala to Aspley, are matters that were well within the purview and experience of the Tribunal, and would be within the purview and experience of most people who have lived in Brisbane for the past number of years.

10. It is information that is not simply a subjective appraisal or thought process or whim or speculation. It is information as to “the husband says this”, “we know he lives here”, “you have to get to Inala, and then from Inala to Aspley”; and, “the times that have been given do not add up”.  That information clearly, as the Tribunal says, would suggest that the husband does not drop her off at the departure point, as claimed, and it tends to undermine the credibility of the Applicant’s evidence in relation to the household arrangements and the cohabitation status. 

11. Lastly, the immigration history. Whilst the Tribunal has spoken as to what the Applicant has said in the past and how that may end up looking, it does not seem to me that this is “information”; it seems to me, that what the Tribunal is doing is, in effect, telling the Applicant why her own evidence does not seem to add up. It does not seem to me that in telling someone that their own evidence does not add up, that it comes within the purview of s.359A of the Act. But whether that ends up meaning anything is a matter I will get to very soon.

12. Whilst that particular section may not satisfy s.359A, the other three aspects in the letter certainly do. The Tribunal has given clear particulars of the information, either coming from the husband or from the anonymous source. The Tribunal has explained why it is relevant to the review, and the consequences of it being relied on, and has invited the Applicant to comment on or respond to it. Even the aspect that is not technically part of s.359A, the Applicant has been, as the letter says, invited to give comments on or respond to the above information in writing. As is said, the Applicant has done that.

13. The Applicant in this case has also relied on paragraph 47 in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

14. At paragraph 47, the Court said:

    First, there may well be cases, perhaps many cases, where either the delegate’s decision or the tribunal’s statements or questions during the hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.  That indication may be given in many ways.  It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor.  But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

15. The Applicant here submits that, this reasoning is why there should have been a further s.360 hearing. However, it seems to me that the invitation that has been given in the letter is there to address what the Court has seen as the danger in SZBEL (Supra), notwithstanding that the last bit of information about the immigration history is not technically necessary as part of a s.359A letter.

16. It seems to me, then, that when one looks at the letter, even though one out of the four of those matters did not need to be brought to the attention of the Applicant, pursuant to s.359A, it probably did need to be brought to the attention of the Applicant, because of the statements or dicta in SZBEL (Supra).

17. The Applicant says that at least that particular part of the information shows why that there should have been another hearing. However, I am of the view that such a submission is not sustainable. It seems to me that because the letter had been, as the majority of what it was purporting to do, compliant with s.359A, that there only needed to be one aspect of that letter that complied with s.359A for there to obviate the need for another hearing, pursuant to s.360 of the Act.

18. In those circumstances, that letter was sent pursuant to s.359A of the Act. If that were so, then there was no need for another s.360 hearing and, therefore, there has been no jurisdictional error established.

19. I therefore dismiss the application, with costs in the sum of $5,600.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  14 May 2019