Vo v Minister for Immigration - [2018] FCCA 3609

FEDERAL CIRCUIT COURT OF AUSTRALIA

VO v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3609

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Class RN) visas – whether the Tribunal misconstrued the statutory provisions – whether the Tribunal failed to have regard to all the circumstances in determining whether the applicant met the statutory requirements – whether the Tribunal’s adverse findings lack an evident and intelligible justification – whether Tribunal acted unreasonably – no jurisdictional error made out – amended application dismissed.

Legislation:

Act Interpretation Act 1901 (Cth), ss.2, 23

Migration Act 1958 (Cth), s.476

Migration Amendments Regulations 1999 (No. 13) (Cth)

Migration Regulations 1994 (Cth), rr.1.05A, 1.12, cl 187.311

Cases cited:

Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265

Applicant:

TUNG LONG THI VO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 485 of 2016

Judgment of:

Judge Street

Hearing date:

5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Perth

Delivered on:

5 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr S Walker

Solicitors for the Applicant:

Christina Chang Lawyers

Solicitors for the Respondents:

Mr A Gerrard
Australian Government Solicitor

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 5 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 485 of 2016

TUNG LONG THI VO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 September 2016 affirming a decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
The applicant is a citizen of the United States of America and was born in Vietnam. On 26 March 2015, the applicant applied for the visa on the basis of being a member of a family unit of her son, the primary applicant. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant was usually resident in her son’s household, in accordance with cl 187.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
On 23 October 2015, the applicant applied to the Tribunal for review of the decision. The applicant appeared at a hearing on 19 July 2016 to give evidence and present arguments.
The Tribunal identified the requirements of cl 187.311 of the Regulations and the definition of “dependent”. The Tribunal referred to the definition turning on a finding of fact that the applicant is ‘wholly or substantially reliant’ on the other person for financial support as a matter of fact, and is so reliant at the time that the finding of dependence is made and for a substantial period immediately before that time, and the financial support being provided, in fact, is to meet the applicant’s basic needs for food, clothing and shelter, and the applicant’s reliance on the other person is greater than his or her reliance on any other person or source of support, or the applicant is wholly or substantially reliant on the other person for financial support because they are incapacitated for work as a result of total or partial loss of bodily or mental functions.
It is apparent in the present case that the last alternative had no application in relation to the definition of whether or not the applicant was dependent on her son. The Tribunal identified the applicant’s background. The Tribunal made a finding that the last mentioned alternative had no application. The Tribunal correctly identified that the issue in the present case is whether the applicant is usually resident in her son’s household and is a dependent of the son.
The Tribunal identified what occurred at the hearing before the Tribunal. The Tribunal referred to the applicant in the United States of America being provided with government housing and some assistance in the form of food stamps. The Tribunal noted that the applicant says she does not own property in the United States of America and does not receive any payments from the United States Government.
The Tribunal took into account that the applicant said when she travels she lives with the son, and identified accommodation that the son had rented. The applicant also referred to her son paying the rent. In response to how the applicant supports herself in Australia, the applicant said she does not work and that her son pays for everything.
The Tribunal referred to the applicant’s movement records and that she has travelled to Australia on 15 occasions as the holder of a tourist visa. The Tribunal raised with the applicant how she was able to afford the same, and the applicant said she travels to Vietnam every three months due to her Australian visa condition and her son pays for her tickets.
The Tribunal sought to explore with the applicant how her son would be able to support her financially when she was in Vietnam, and the applicant said that her son would give her money. The Tribunal asked the applicant whether she owned any property in Vietnam, and she said she did not own any property and that she would live with her older brother. The Tribunal also referred to the applicant’s evidence that she did not work in Vietnam but did volunteer work at a Buddhist temple and she got clothing from charity.
The Tribunal raised with the applicant why she would not be working in Vietnam, and referred to the applicant’s evidence that her son would deposit about $100 per week in her bank account but could not say when this arrangement commenced. The Tribunal referred to the applicant’s CBA bank account statements showing nine $100 deposits from the primary applicant, being the son, in the period 20 October 2015 to 10 May 2016.
The Tribunal referred to the evidence from the son and, in particular, that he pays the rent and pays all the living costs associated with his mother’s stay in Australia. The Tribunal referred to the applicant regularly travelling to Australia since November 2009 and raising with her son how the tickets could be paid. In that regard, the son said he did not have much money and that he borrowed from his aunt and purchased a ticket for his mother, and that he had not been able to pay his aunt back. The Tribunal referred to the applicant claiming that his mother did not work and only did voluntary charity work when in Vietnam.
The Tribunal referred to the evidence of the applicant’s sister-in-law and that she owned the property rented out to the applicant’s son for a particular amount per week. The Tribunal referred to the sister-in-law saying that she had paid the applicant’s airline tickets to Vietnam because the son could not afford the cost, but asserted there was an agreement that he would pay the money back but that, to date, he has not paid any money.
The Tribunal referred to a concern that the son has limited access to funds in Australia, and that the applicant’s brother and her sister-in-law are providing her with financial support. This was raised at the hearing, and the Tribunal noted that the applicant requested further time to respond. The Tribunal provided the applicant until 26 July 2016 to respond. The transcript has been tendered and the Court notes that there was a reference to a request by the applicant for two months and that the Tribunal identified that the matter had been listed for some time and indicated that the applicant could have one week and the applicant agreed in that regard. The applicant did provide further substantial information to the Tribunal and no further request was made for a further opportunity to provide further information.
The Tribunal expressly referred to the post-hearing submissions and the material provided. The Tribunal took into account the evidence that when the applicant travels to Australia she spent all her time residing in her son’s household. The Tribunal was satisfied that when the applicant is in Australia she is usually resident with the primary applicant.
The Tribunal turned to the issue of being wholly or substantially reliant and referred to an issue of whether or not r 1.05A(1) of the Regulations was capable of being construed as having application to the plural so as to permit the applicant to be wholly or substantially reliant on more than one person for their basic needs. The Tribunal referred to a decision of this Court in that regard, the reasoning of which was the subject of a potential alternative approached identified by the learned Robertson J, although the learned Justice did not determine whether or not the decision of this Court was, in fact, correct. The footnote by the Tribunal identifies that it was the decision of this Court that was binding on the Tribunal. It is not apparent on the face of the Tribunal’s reasons that the issue of the plural or the singular had any application in the determinative outcome of the application for review.
There is no finding by the Tribunal identifying the applicant being wholly or substantially reliant on more than one person. The Tribunal’s reasons do not make a finding by reference to some other person by reason of which it should be inferred there is any application of the singular and plural construction issue in the Tribunal’s reasons.
Further, notwithstanding the weight of the observations of the learned Robertson J, that case did not determine whether or not the operation of s 23 of the Acts Interpretation Act 1901 (Cth) was excluded. This Court is not persuaded that its decision in Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265 in respect of the construction of r 1.05A of the Regulations is clearly wrong. The Court accepts the first respondent’s submission that the plain meaning of the statute supports the construction that dependency within the meaning of r 1.05A of the Regulations envisages one person being reliant on one other person.
The words “the other person” in subsection (i) and (ii) are specific in the singular. I accept the first respondent’s submission that this is sufficient to rebut the presumption contained in s 23 of the Acts Interpretation Act 1901 (Cth). I also accept the proposition that the extrinsic material support that construction and, in that regard, refer to the Migration Amendments Regulations 1999 (No. 13) (Cth) and the explanatory statement:
New subregulation 1.05A(1) inserts a definition of "dependent", which is applicable to every other situation in which a determination must be made about whether one person is "dependent" on another.
I find that the purpose of the legislature is clear from the context and text of the Act and supports the construction adopted by this Court the purpose in that regard is that only one person can be the “another” on which person is dependent. Insofar as it is necessary to take into account the extrinsic materials, the explanatory memorandum further supports the demonstration of a contrary intention within the meaning of s 2(2) of the Acts Interpretation Act 1901 (Cth).
I further accept the Minister’s contention that having regard to the purpose of the legislation revealed by the statute, the construction advanced to the effect that the plural could be included would lead to uncertain and undesirable outcomes contrary to the purpose of the legislation.
Further, even if there were a different view taken in respect of the construction so as to include the plural, it is not apparent for the reasons already given that any such construction had any operative application in the determination of the review in the present case. Accordingly, any such error was not material and does not give rise to any jurisdictional error as alleged in ground 1.
The Tribunal in its reasons referred to concerns about the credibility of the applicant’s evidence. The Tribunal supported that finding by reference to the applicant to the proposition that the son pays for everything. It is apparent from the Tribunal’s reasons that that was found to be an overstatement in relation to the applicant’s credibility.
The Tribunal also observed that it was not provided with any invoices or receipts to support the claim that the primary applicant paid for the applicant’s food or clothing in Australia or Vietnam. Whilst it is the case that there was other evidence asserting the son’s expenditure in that regard, it was open, relevant and rational for the Tribunal to take into account the absence of such invoices or receipts in considering the credibility and concerns about the applicant’s evidence.
The Tribunal also found the funds appearing in the applicant’s CBA account inconsistent with her claim that she had no money and was reliant on charity and could not afford airline tickets to travel to Australia. The Tribunal referred to the travel overseas. The Tribunal found the applicant’s time overseas was not insubstantial. The Tribunal that when the applicant is Vietnam, she resides with her older brother and found that when the applicant is in Vietnam, she is not wholly or substantially reliant on the primary applicant for shelter.
The Tribunal referred, having regard to the applicant’s claims, that when she is in Vietnam, she relies on charity for clothing and food. The Tribunal found that evidence is not consistent with the applicant’s claim that she is dependent on her son for food and clothing when she is in Vietnam.
The Tribunal referred to the applicant’s claim that her son had given her money to spend on food and clothing when she is in Vietnam. The Tribunal however, found that the only evidence of payment being made to the applicant are nine $100 deposits. The Tribunal found this does not support the finding that the applicant is reliant on her son for food and clothing for a substantial period immediately before the time of the Tribunal’s decision in this matter.
The Tribunal found the applicant did not meet the requirements of r 1.12(1)(e)(iii) of the Regulations and affirmed the decision under review.

Before this Court

The grounds in the amended application are as follows:
Ground 1. The Tribunal committed a jurisdictional error by construing the references to “another person” and “the other person” in the definition of the term “dependent” in r.1.05A (1) of the Migration Regulations 1994 as being incapable of including the plural, with the result that an applicant could not be wholly or substantially reliant on more than one person for her basic needs.
Ground 2. The Tribunal committed a jurisdictional error by failing to correctly understand and apply the terms of r.1.05A (1) (a) (ii), in that, having implicitly made a finding that (at least when in Vietnam) the Appellant was reliant on persons other than her son for financial support to meet her basic needs for food, clothing and shelter, it was required to consider whether she was also reliant on her son, and, if so, whether her reliance on her son was greater than her reliance on any of those other persons.
Ground 3. The Tribunal committed a jurisdictional error by treating the “substantial period” immediately before its decision (referred to in r.1.05A (1) (a)) as extending back to August 2009, when in all the circumstances that substantial period should have been taken to have commenced no earlier than May 2016 (the date of the Appellant’s last return from Vietnam).
Ground 4. In the alternative to Ground 3, the Tribunal committed a jurisdictional error by failing to determine the “substantial period” there referred to.
Ground 5. In the alternative to both Grounds 3 and 4, the Tribunal committed a jurisdictional error by failing to consider the evidence regarding substantial reliance over the entire “substantial period” in the aggregate, by reference both to time spent in Australia and to time spent in Vietnam.
Ground 6. The Tribunal committed a jurisdictional error by asking itself a wrong question, namely why the Appellant was not undertaking paid employment, taking into account an irrelevant consideration, namely her capacity for paid employment, and failing to take into account a relevant consideration, namely the evidence of witnesses that support of a parent by a child is expected in Vietnamese culture.
Ground 7. The Tribunal committed jurisdictional errors by making findings that were not based on probative evidence, and that were legally unreasonable.
PARTICULARS OF FINDINGS
(a) At paragraph [77] of its Decision Record, in reference to the Appellant’s claim that her son had given her money to spend on food and clothing in Vietnam, the Tribunal wrongly found that the only evidence of payments being made to her was of nine $100 payments between 20 October 2015 and 10 May 2016, in that it failed to have regard to the Appellant’s oral evidence of lump-sum payments made to her prior to each departure to Vietnam; and
(b) At paragraph [76] the Tribunal wrongly found that the Appellant’s evidence of her reliance on charity for clothing and food in Vietnam was inconsistent with her claim of dependence on her son for food and clothing in Vietnam.
Ground 8. The Tribunal committed jurisdictional errors by misapprehending material evidence and making a negative credibility finding based upon such misapprehensions.
PARTICULARS
(a) The Tribunal misapprehended the evidence material to the question of financial support of the Appellant by her son in that it failed to comprehend that there was evidence in the form of a Statutory Declaration by one David Lam to the effect that he had accompanied them when the son bought food, groceries, beauty and grooming products, clothing and shoes for the Appellant; and
(b) At paragraph [69] of its Decision Record the Tribunal found that “the funds appearing in [the Appellant’s] CBA account” were inconsistent with “her claim that she had no money and was reliant on charity and could not afford airline tickets to travel to Australia”, when there was no such inconsistency.
Ground 9. The Tribunal committed a jurisdictional error by acting unreasonably in refusing the Appellant’s request to be provided with a period of two months to provide further evidence responding to the Tribunal’s expressed concerns and doubts, and instead providing only one week for her to do so.
Mr Walker of counsel, on behalf of the applicant confirmed that ground 6 was abandoned.

Ground 1

In relation to ground 1, for the reasons already given, this Court does not accept that there was any operative error by the Tribunal in its reasons referable to whether or not the provision could include the plural in respect of a person being wholly or substantially dependent on more than one person.
Further, for the reasons already given, the Court is not persuaded that the decision of this Court is clearly wrong. Further, this Court is not satisfied that even if there were any error in the circumstances of the present case it was operative or material so as to give rise to a jurisdictional error. No jurisdictional error is made out by ground 1.

Grounds 2 to 5

In relation to grounds 2 to ground 5, Mr Walker took the Court to the statutory declarations and other evidence in respect of what was contended to be errors by the Tribunal in its approach to its task in determining whether or not the applicant was dependent on her son.
The submissions, notwithstanding the skill in which they were framed, are in substance an invitation to this Court to engage in impermissible merits review. There is no basis to find that the Tribunal misunderstood its task in respect of the meaning of dependent or that the Tribunal misunderstood or erred in its understanding of substantial period, or that the Tribunal erroneously over-focused on the applicant’s time in Vietnam, or that the Tribunal failed to take into account the evidence adduced by the applicant including the evidence adduced post the hearing. The Tribunal’s reasons do not have to refer to every piece of evidence.

There is no proper basis in the circumstances of the present case to infer that the Tribunal failed to have regard to all the circumstances in determining whether or not the applicant met the criteria under cl 187.311 of the Regulations. No jurisdictional error is made out by grounds 2 to 5.

Grounds 7 and 8

In relation to ground 7 and ground 8, there is no misunderstanding of the evidence identified that supports any finding that the Tribunal’s reasons were illogical, irrational or unreasonable. The concerns in relation to the credibility of the applicant cannot be said to be trivial or insignificant matters and the Tribunal’s adverse findings were open to the Tribunal for the reasons given by the Tribunal. Those adverse findings as summarised above cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in grounds 7 to 8 are made out.

Ground 9

In relation to ground 9, Mr Walker submitted that the Tribunal had unreasonably deprived the applicant of a two month period to respond. It is apparent from the transcript that the Tribunal took into account that the application for review had commenced on 23 October 2015 and the applicant had received an invitation letter on 6 May 2016 informing the applicant that the Tribunal was unable to make a favourable decision on the information currently before it in fixing the matter for hearing on 19 July 2016. The Tribunal’s decision to provide the applicant with one further week cannot be said, in those circumstances, to lack an evident and intelligible justification. The provision of a further week to the applicant to put on further material was not unreasonable in the circumstances of this case.
Further, it is apparent that the applicant was able to provide a very substantial amount of material within the timeframe provided and no further request was made for any further time. The Tribunal did not act unreasonably in providing the applicant with only one further week in the circumstances of the present case. No jurisdictional error as alleged in ground 9 is made out.

Conclusion

Accordingly, the amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 February 2019