FEDERAL CIRCUIT COURT OF AUSTRALIA
| VO v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1170 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision not to grant Partner (Residence) (Class BS) visa – applicant sought to explain away evidence that suggested he was not cohabitating with spouse at alleged spousal home at time of visit by investigators by giving evidence that spousal home was then being renovated and that he and his spouse often stayed with relatives during the renovations – Tribunal did not accept that explanation because the spouse made no such statement to the investigators at the time of visit – whether spouse’s failure to make corroborating statement was information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review within the meaning of s.359A(1) of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 368, 424A, 430 Migration Regulations 1994 (Cth), reg.1.15A, Schedule 2, cls. 801.221, 820.211(2)(a) |
| Applicant: | VAN THOAI VO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1415 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 May 2016 |
| Date of Last Submission: | 6 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Vinh Duong & Associates |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1415 of 2015
| VAN THOAI VO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial…
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Details
- Case
- [2017] FCCA 1170
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the appellants, Vo and others, against a decision of the Minister for Immigration. The dispute centred on whether certain statements made in a statutory declaration by the appellants constituted "information" that the Refugee Review Tribunal (RRT) considered would be the reason, or part of the reason, for affirming the decision under review, as contemplated by section 424A(1)(a) of the Migration Act 1958 (Cth). The case was heard in the High Court of Australia.
The primary legal issue before the High Court was to determine the proper interpretation of section 424A(1)(a) of the Migration Act 1958 (Cth), specifically what constitutes "information" that the RRT "considers would be the reason, or a part of the reason, for affirming the decision that is under review." The court was required to ascertain whether the statements within the appellants' statutory declaration met this threshold.
The plurality of the High Court reasoned that for material to qualify as "information" under section 424A(1)(a), there must be a direct inferential link between that information and the Tribunal's intention to affirm the decision under review. This means the information must serve as an immediate premise for the Tribunal's decision. The court held that the reason for affirming a decision under review is dependent on the criteria for making that decision in the first place. In this instance, the relevant criterion was found in section 36(1) of the Act, concerning protection visas. The court found that the passages in the statutory declaration did not, in themselves, reject or undermine the appellants' claims to protection obligations. Instead, if believed, they would have supported the claims. Therefore, the statements, when considered alone, were not capable of constituting a reason for affirming the decision. The plurality distinguished this from situations where inconsistent statements might be relevant to credibility, but concluded that the specific statements in the statutory declaration did not meet the threshold of being the reason or part of the reason for affirming the decision.
The primary legal issue before the High Court was to determine the proper interpretation of section 424A(1)(a) of the Migration Act 1958 (Cth), specifically what constitutes "information" that the RRT "considers would be the reason, or a part of the reason, for affirming the decision that is under review." The court was required to ascertain whether the statements within the appellants' statutory declaration met this threshold.
The plurality of the High Court reasoned that for material to qualify as "information" under section 424A(1)(a), there must be a direct inferential link between that information and the Tribunal's intention to affirm the decision under review. This means the information must serve as an immediate premise for the Tribunal's decision. The court held that the reason for affirming a decision under review is dependent on the criteria for making that decision in the first place. In this instance, the relevant criterion was found in section 36(1) of the Act, concerning protection visas. The court found that the passages in the statutory declaration did not, in themselves, reject or undermine the appellants' claims to protection obligations. Instead, if believed, they would have supported the claims. Therefore, the statements, when considered alone, were not capable of constituting a reason for affirming the decision. The plurality distinguished this from situations where inconsistent statements might be relevant to credibility, but concluded that the specific statements in the statutory declaration did not meet the threshold of being the reason or part of the reason for affirming the decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The plurality’s reasons for concluding the statements contained in the statutory declaration did not constitute “information” which the RRT considered would be the reason or part of the reason for affirming the decision under review are to be found in the following passage (emphasis added):[37]Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.[37] [2007] HCA 26 at [17] This passage suggests that before “evidentiary material or documentation” can be characterised as “information” the Tribunal “considers would be the reason or part of the reason for affirming the decision under review”, there must be a direct inferential link between the information and the Tribunal’s intention to affirm the decision under review. That is, the information must serve as the immediate premise, or one of the immediate premises, on which the Tribunal intends to rely for affirming the decision under review. That is supported by the following aspects of this part of the plurality’s reasons.a)The plurality noted that the reason for affirming the decision under review specified in s.424A of the Act is a matter that “depends upon the criteria for the making of that decision”. That indicates the plurality was of the view that the “information” must be directly referable to the criteria, or, more particularly, the absence of one or more of the criteria, an applicant must satisfy before he or she may be granted a visa.b)The plurality held the relevant portions of the statutory declaration “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”. That is, the statements contained in the statutory declaration, considered alone, were not capable of constituting a reason for affirming the decision under review. The plurality noted that, considered alone, the statements supported the visa applicants’ claims. c)Third, an applicant’s making inconsistent statements is relevant to the assessment of an applicant’s credibility and, therefore, in many cases, would be considered by the Tribunal to be part of the reason for affirming the decision under review. The plurality, however, did not consider that this relevance rendered the statements made in the statutory declaration “information” the Tribunal considered “would be the reason or part of the reason for affirming the decision under review”. The plurality did not do so because, considered alone, the statements made in the statutory declaration were incapable of constituting reasons for affirming the decision under review.
Ratio Decidendi
Legal Principle Established
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