Vo v Minister for Immigration

[2016] FCCA 1360

FEDERAL CIRCUIT COURT OF AUSTRALIA

VO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1360

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) Visa – whether the Tribunal failed to consider relevant information – whether the Tribunal gave sufficient weight to financial evidence of the relationship – whether the Tribunal was unreasonable in giving weight to anonymous evidence – whether the Tribunal was unreasonable in considering the credibility of the applicant – no jurisdictional error identified – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss.5(2), 5F, 476

Migration Regulations 1994 (Cth) reg. 1.15A(3), cl.820(2)(11)

Applicant: THI YEN OANH VO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 457 of 2015

Judgment of: Judge Street

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Adelaide

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the Applicant: Dr Churches

Solicitors for the Applicant: Trinh Lawyers

Counsel for the First Respondent: Mr Tredrea

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 457 of 2015

THI YEN OANH VO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision the Tribunal made on 25 November 2015 confirming a decision of the delegate not to grant the applicant a Partner Temporary Class UK visa. The applicant is a citizen of Vietnam and first arrived in Australia on 2 May 2013 as the holder of a visitor tourist visa.

2. The applicant claimed in the visa application to have first met the sponsor on 5 June 2013.  The applicant and the sponsor were legally married on 1 October 2013 and the application for the Partner Temporary (Class UK) visa was made on 25 October 2013. 

3. On 5 February 2015, the delegate refused to grant the applicant the visa and was not satisfied that there was a married relationship within the criteria under s.5F(2) of the Migration Act1958.  The delegate noted that while satisfied that the applicant and the sponsor were married, there was no evidence that the parties see the relationship as long term or that the parties draw emotional support and companionship from each other, or that they have a commitment to a shared life together.

4. The applicant applied for review on 22 February 2015 and on 29 September 2015, the applicant was sent a letter inviting the applicant to appear at the Tribunal on 10 November 2015.  The applicant appeared on that date to give evidence and present arguments.  At the conclusion of the hearing, the Tribunal sent the applicant a letter, dated 10 November 2015, drawing the applicant’s attention to information received prior to the application for a visa from an anonymous source, that the applicant was attempting to enter into a contrived marriage and that a family member in Vietnam was offering payment of money to people to enter into a relationship with the applicant.

5. In response to that letter, further submissions and information were provided to the Tribunal. The applicant was represented at the hearing by their migration agent. The Tribunal identified the requirements of cl.820.211 of the Migration Regulations 1994 and, in particular, that at the time of the visa application being made, the applicant is the spouse of the Australian citizen. The Tribunal identified the requirements of s.5(2) of the Migration Act 1958 and reg.1.15A(3) of the Migration Regulations 1994 in relation to those requirements.

6. The Tribunal’s reasons reflect an orthodox approach to the consideration of each of those factors and the whole of those circumstances and relevantly concluded that the Tribunal was not satisfied that the sponsor and the applicant had a mutual connection to a shared life as husband and wife to the exclusion of all others as required by s.5F(2)(b) of the Migration Act 1958 and was not satisfied that the relationship between them was genuine and continuing as required under s.5F(2)(c) of the Migration Act 1958 at the time of the application.

7. The grounds of the application are as follows:

   1. The Tribunal misdirected itself at law by determining that evidence given in support of the Applicant's case before the Tribunal, which related to a time after the time of application for the visa [that time being 25 October 2013], did not have relevance to a determination of the events at the time of the application for the visa.

   Particulars

   At [36] of the Decision, the Tribunal says that the evidence of the Applicant's mother-in-law, the Applicant and her sponsor/husband "regarding current and more recent living arrangements in any event does not inform on the nature of the household and the living arrangements at the time of application".

   2. The Tribunal misdirected itself at law by not taking account of relevant material.

   Particulars

   The Tribunal determined, at [32], that it would give no weight to the joint bank statement relied on, which in the context of that paragraph refers to the bank statement described at [1 0], which was a bank statement from the time of the application for the visa, which was made on 25 October 2013. The Tribunal noted of that bank statement that “There is no objective evidence of a pooling of financial resources. No salary is deposited .... ".

   But the Applicant also put on bank statements from 2014 and 2015, which clearly show that the husband/sponsor's salary from Sunfresh Salads was being regularly placed into the account, which was clearly in the joint names of the Applicant and the husband/sponsor.

   The bank statements from a date after the time of the application for the visa were still relevant by process of inference to an assessment of the state of affairs at the time of the application for the visa.

   The evidence referred to at clause 1 above, from the Applicant's mother in-law, the Applicant and the husband/sponsor also falls into the category of relevant material unlawfully excluded by the Tribunal.

   3. The Tribunal misdirected itself at law by not taking into account the consequences of its decision-making process when weighing or taking account of evidence.

   Particulars

   The matters raised at clauses 1 and 2 above reflect the unlawful approach of the Tribunal, as does the approach of the Tribunal at [35] of the Decision, and the approach in dealing with the “anonymous dob-in letter” at [39] to [42], culminating in the decision at [43].

   4. The Tribunal misdirected itself at law by taking account of an irrelevant consideration, reflected in the Tribunal's doubt as to the Applicant's veracity at [34].

   Particulars

   The Tribunal noted the Applicant's difficulty in remembering where her first address was when living with her husband/sponsor: see Decision [14]. The Applicant's failure to readily remember an address at her Tribunal interview in November 2015, 20 months after she had lived there (from July 2013 to March 2014: see evidence of Mr Foo Chang Yao at Decision [29]), is exactly as might be expected of a person who arrived in Australia in June 2013 from a non-Western background, and with no other experience of Western urban living, and who needed an interpreter to cope with the Tribunal interview (a matter not noted by the Tribunal in its Decision). The Tribunal has engaged in cultural assumptions as to how people understand geography and remember location, which has caused the Tribunal to make the uncertainty of the Applicant as to her first address with the husband/sponsor a consideration, but an irrelevant one.

8. In relation to ground 1, Dr Churches of counsel, sought to develop an argument that the Tribunal had inappropriately excluded potentially relevant probative information post the date of application, in determining the factors and whether the criteria was satisfied at the time of application, in accordance with s.5F of the Migration Act 1958 and reg.1.15A(3) of the Migration Regulations 1994.  Dr Churches took the Court to the transcript in which the Tribunal member identified in the course of the hearing the intention to first focus on whether the applicant met the relevant criteria at the time of application.

9. That reference by the Tribunal does not support the proposition that the Tribunal was excluding any subsequent event in determining the application and the existence of the criteria at the time of application.  Dr Churches referred to part of the Tribunal’s reasoning in rejecting the mother-in-law’s evidence in terms of the living arrangements and the nature of the household at the time of application.

10. That reference by the Tribunal to the weight given to the mother-in-law’s evidence does not reflect an error of the kind articulated by Dr Churches.  It was open to the Tribunal to determine whether or not to accept the mother-in-law’s evidence and the adverse findings by the Tribunal were reasonable and open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 1 fails to make out any jurisdictional error. 

11. In relation to ground 2, Dr Churches sought to challenge the reasoning of the Tribunal in relation to the financial aspects of the relationship and the treatment by the Tribunal of the bank statement evidence that was adduced before the Tribunal.  At the time of application, the bank statement adduced did not identify the name of the account holder.  Further, the Tribunal made reference to the fact that there were no salary deposits or history of transactions indicating the account was used regularly for domestic transactions. On a fair reading of the Tribunal’s decision, without a keen eye for error, that was a reference to the position at the time of application. 

12. It was open to the Tribunal to determine what weight should be given to the bank statements at the time of application. The reference in para.32 to no salaries deposited, is also consistent with para.12 as being focused on the time of application.  There was no factual error on the material by the Tribunal.  Dr Churches correctly drew the Court’s attention to the fact that there were in 2015 various salary deposits.  Those deposits do not reveal any error by the Tribunal in its assessment of what the bank statements show as at the time of application.

13. I do not accept that the Tribunal misdirected itself at law in relation to the bank statements.  It was open to the Tribunal to make the adverse findings made in relation to the bank statements.  Ground 2 fails to make out any jurisdictional error.

14. In relation to ground 3, Dr Churches made reference to the “anonymous dob-in letter” to which the Tribunal referred in para.25 of its reasons and, in particular, its reasoning about that letter in paras.39-42 leading to the conclusion by the Tribunal that it was not satisfied that the applicant and sponsor had a mutual commitment to a shared life or had entered a genuine and continuing relationship.

15. Dr Churches developed the argument by reference to the potential caution that might be expected in respect of anonymous document.  The Tribunal identified that the document in the present case was of an unusual kind because it was provided prior to the making of any application by the applicant.  The reasoning of the Tribunal in relation to the “dob-in letter” cannot be said to be unreasonable and it was a matter for the Tribunal what weight to give that letter.  It is apparent from the Tribunal’s reasons that the letter was not given decisive weight but was one of the matters taken into account by the Tribunal.  There was no misdirection of law in relation to the Tribunal taking into account the “dob-in letter” in the present case. Ground 3 fails to make out any jurisdictional error. 

16. In relation to ground 4, Dr Churches focused specifically upon part of the transcript in which the Tribunal member sought to clarify with the applicant where she lived, allegedly with the sponsor at the time of application.  The applicant identified a number in a street, but couldn’t identify the street name.  The Tribunal member went on to try and identify whether the applicant could describe any nearby landmarks or shopping centre.  The Tribunal member identified that the applicant’s responses gave rise to concern as to whether the applicant ever lived at the relevant location.

17. The transcript is entirely consistent with the Tribunal member complying with the requirements of procedural fairness and raising with the applicant live issues in respect of the applicant’s evidence.  Regarding the Tribunal’s findings in relation to the applicant’s difficulty in recalling or describing the address or the location of the property, those findings were open on the material before the Tribunal.

18. I do not accept that the Tribunal misdirected itself in relation to the applicant’s credibility. The finding made by the Tribunal in para.14 on its reasons, was open on the material before the Tribunal.  Ground 4 fails to make out any jurisdictional error.

19. Counsel for the first respondent submitted that the grounds of the application were, in substance an impermissible challenge to the adverse findings of fact made by the Tribunal.  I accept that submission.

20. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 7 June 2016