Vu v Minister for Immigration

Case •

[2006] FMCA 114

•

31 January 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 114

MIGRATION – VISA – Migration Review Tribunal – review of visa refusal – Subclass 820 – genuine relationship – misleading information in application – review of decision of Migration Review Tribunal affirming a decision that the Applicant is not entitled to the grant of a Partner (Temporary) (Class UK) visa – inconsistency between applicant’s evidence and evidence of another person does not constitute “information” for the purpose of s.359A of the Migration Act 1958 (Cth) – adverse credibility finding does not constitute “information” for the purpose of s.359A of the Migration Act 1958 – whether information provided on arrival card an integral part of the reason for affirming the decision under review – where Tribunal places “significant weight” on evidence that evidence held to be an integral part of the reason for affirming the decision under review.

PRACTICE & PROCEDURE – Delay – where decision notified on 22 September 2003 but application not filed at Court until 27 October 2005 – request for exercise of Ministerial discretion under s.351 of the Migration Act 1958 (Cth) not an explanation for delay in commencing proceedings – discretionary refusal of relief.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.351, 359A, 368, 501
Migration Regulations 1994 (Cth) R.1.15A

Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686
Minister for Immigration and Ethnic Affairs v Teoh (1995) 138 ALR 353
Tuitavake v Minister for Immigration and Multicultural Affairs [1999] FCA 1160
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
Lei Wan v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 568
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.
Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 1160
SZEZI vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67

Applicant: VU ANH TUAN
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: MIGRATION REVIEW TRIBUNAL
File No: SYG 3133 of 2005
Delivered on: 31 January 2006
Delivered at: Sydney
Hearing date: 25 January 2006
Judgment of: Scarlett FM

REPRESENTATION

Solicitor for the Applicant: Mr Ray Turner
Counsel for the Respondent: Mr Mitchell
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. That the Application is dismissed.

  2. That the Applicant is to pay the First Respondent’s costs in the sum of $4,000.00.

  3. I allow eight (8) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3133 of 2005

VU ANH TUAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Migration Review Tribunal that was made on 15th September 2003. The decision of the Tribunal was to affirm a decision of the delegate of the Minister finding that the Visa Applicant was not entitled to the grant of a partner (Temporary) (Class UK) visa.

Background

  1. A brief history of the matter is that the Applicant lodged an application for review on 20th May 2002 seeking review of a decision of the delegate to refuse to grant a visa which had been made on 14th May 2002. The Applicant had entered Australia on another visa in May 1997 and he was granted a further visa in December of that year.  That visa expired in March 2000 and he then went on to a bridging visa as a result of his application for this visa.

  2. The Applicant was nominated in connection with the visa application by Ms Nina Tran who is an Australian citizen and has been an Australian citizen since August 1999. The parties claim that they had met in October 1998 and there is no issue about the fact that they were married in Sydney on 18th December 1999. They have provided documentary evidence in support of the application, which included a number of photographs, receipts, tenancy agreements, statutory declarations, telephone bills and other material.

Tribunal’s findings and reasons

  1. The Applicant and the Nominator both attended a hearing of the Tribunal that took place on 18th August 2003 and they both gave evidence. The Tribunal, however, returned an unfavourable decision.  Whilst the Tribunal was satisfied that the parties were married in a valid ceremony on 18th December 1999, the Tribunal was not satisfied as to the reliability of the Applicant's evidence as that evidence contradicted that of the Nominator on a number of important points.

  2. The Tribunal was also not satisfied that the statutory declarations of the Applicant and the Nominator about the relationship were also reliable.  In addition, the Tribunal was not satisfied that the Nominator, Ms Tran, resided at an address in Acacia Street as she had claimed, but continued to reside at Torrens Street in Canley Heights. The Tribunal formed the view that there was a lack of reliable documentary evidence showing spousal relationship at the time of the application and also that at the time of the application the couple were in a genuine spousal relationship. 

  3. The Tribunal was not satisfied that the couple were residing together or that any relationship that they had was mutually exclusive. The Tribunal formed the view that the couple's evidence at the hearing did not indicate that they had a good knowledge of the circumstances of each other. The Tribunal formed an unfavourable view of the Applicant's evidence about his employment and it was so unfavourable that the Tribunal described that evidence as unreliable.  The Tribunal also formed the factual conclusion that the documents provided did not make it clear that the parties were actually pooling their financial resources.

Application for judicial review

  1. The Applicant filed his Application for review at this Court on 27th October 2005. An Amended Application was filed in Court on 25th January 2006. The grounds of the Application were threefold: 

    i)That the Tribunal failed to take account of relevant particulars, they being a failure to take an account or a real account of the Applicant's children.

    ii)That the Respondent denied the Applicant procedural fairness. There were a number of particulars there, including failing to treat the Applicant's children as a primary consideration and failing to give the Applicant adequate notice that it intended to do so and failing to give the Applicant written notice of material before the Tribunal which was capable of being the reason or part of the reason for affirming a decision under review. 

    iii)That the Tribunal failed to carry out its statutory duty, which was in this case a requirement under s.359A of the Migration Act to give the Applicant particulars of any information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review to ensure that the Applicant understands why that was significant.

    It can be seen from the grounds and the particulars of the grounds that there is some overlapping of the grounds and the particulars of those grounds, although that is not an incorrect method of approach.

  2. It appears to me that there are two main considerations, the first being the matters relating to the Applicant's children, the second being the way in which the Tribunal treated certain information and whether or not that information was treated in a way that complied with s.359A of the Migration Act.

  3. In respect of the children issue, the Applicant submits that the Tribunal had not considered the best interests of the Applicant's children in that it had not determined what the children's best interests were, which was a necessary precondition to any consideration of their best interests.  The Applicant referred to Lei Wan v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 568. In respect of that issue, the Applicant's solicitor, Mr Turner, submitted Article 3 of the Convention on the Rights of the Child which states at para 1:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

  4. In respect of the s.359A issue, the denial of procedural fairness, the Applicant says that the Tribunal failed to give the Applicant particulars of information which formed the reason or part of the reason for affirming the decision, being the evidence given by the Applicant's wife at the hearing and by some information filled in on arrival cards when the Applicant's wife and child from a previous marriage and the Applicant's ex‑husband arrived at Sydney Airport. The addresses given there on the arrival cards were used by the Tribunal as an indication that the Applicant's wife was not living at the address where the Applicant said she was. Other material related to interviews with an officer of the Department of Immigration & Multicultural & Indigenous Affairs and the marriage certificate. The Applicant submits that the failure to provide particulars of this information in writing is jurisdictional error and refers to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.

  5. The circumstances that need to be considered under dealing with a relationship as to whether it is a genuine marriage or not relate both to the parties' situation at the time of the application, at the time the application is made and also at the time of consideration. It is conceded that the Applicant and Ms Tran had become the parents of twin children in the intervening period of time.

  6. The Respondents filed a notice of Objection to Competency in which they pointed out that the decision was handed down on 15th September 2003 and the Applicant was notified on that date but the application for review was not filed at this Court until 27th October 2005.  It is such, they submitted, that the application does not comply with the time limit set out in sub‑section 477(1).

  7. The Respondent submits that the statutory regime required that the Applicant be a spouse of the Nominator at the time of the application and at the time of the decision in respect of that application and the Tribunal was not satisfied that the Applicant was a spouse of the Nominator at the time of the application. That being the case, it is submitted the Tribunal was not required to set out its findings on matters it had considered were not material, namely, the existence or otherwise of a spousal relationship between the Applicant and the Nominator as at the date of the decision.

  8. All that sub-s.368(1)(c) of the Migration Act requires is that the Tribunal set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons the Tribunal had for reaching that decision. It was not obliged to make findings as to whether it accepted or rejected every allegation made in the course of evidence. (See Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [35]).

  9. The Tribunal was obliged to consider the nature of the household, including joint responsibility for the care and support of children at the time of the application and at the time of decision. There was no evidence at the time of application of children for whom the Applicant had joint responsibility it is submitted.

  10. As to the best interests of the children being a primary consideration, the Respondent submitted that the reasoning in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 and Lei Wan v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 568 do not apply to this case. In this case, as opposed to the decisions in Teoh and Wan where the decision under review was an exercise of the Minister's discretion under s.501 of the Migration Act, the statutory scheme here incorporates considerations in respect to children as relevant considerations in determining whether the Applicant and the Nominator are spouses at the relevant times. This is provided for by Reg.1.15A.

  11. There is no basis for holding it over and above the statutory scheme in respect of spouse visas which sets out the relevant considerations that the Tribunal is obliged to consider, that a further primary consideration arising from the United Nations Convention on the Rights of the Child should apply and that failure by the Tribunal to consider this primary consideration constitutes a jurisdictional error. (See Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 1160 at [6]). A ratified treaty does not take on the status of a law imposing obligations and giving rights and does not have the effect of mending the existing statute law. (See Teoh at 361 and 362).

  12. As far as the matters raised by the Applicant in paragraph 22 of the Applicant's Submission, the Respondent submits, and I believe correctly, that the decision of the Tribunal was based on inconsistencies and contradictions that arose between the evidence given by the Applicant and that given by Ms Tran and that also the Tribunal considered that the Applicant's evidence was inadequate and also that the Tribunal made an adverse credibility finding in respect of the Applicant's evidence. 

  13. The question of inconsistency between evidence does not constitute information for the purpose of s.359A of the Migration Act and as such, the obligations in sub-section 359A(1) do not apply. Most of the cases relate to s.424A of the Act, which is in essentially similar terms, but the authorities are WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221, VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471, SZEZI vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306. The Respondent also submitted that inadequacy of evidence does not constitute information for the purpose of the section and the question of an adverse credibility finding arising out of evidence given at the hearing does not constitute information.

  14. Turning to the other matters, the Respondent submitted that the arrival cards, the interviews with an officer of the Department of Immigration & Multicultural & Indigenous Affairs and the marriage certificate were not an integral part of the reason for affirming the decision under review and referred to VAF v Minister for Immigration & Multicultural & Indigenous Affairs. In my view, that submission cannot be answered quite as simply as that because the marriage certificate, for a start, was accepted by the Tribunal in that the Tribunal accepted that the marriage entered into was a valid marriage. The interviews with the officer of the Department are to my mind of little relevance. What I must, with respect, reject in the Respondent's submission is the claim that the entries on the arrival cards at paragraph 46 of the Tribunal decision should not be regarded as an integral part of the reason for affirming the decision under review. The Respondent relies on the decision in VAF to which I have previously referred. The relevant passage from paragraph 46 of the Tribunal decision says:

    The Tribunal places significant weight on the arrival cards, declaring the residence of the Nominator, her son and Jonathan Lee as being Torrens Street, Canley Heights in October 2000, some seven months after the visa application. This is coupled with a lack of reliable documentary evidence showing a spousal relationship at the time of application, and this lack of evidence has not been assisted by the evidence given in the hearing.

  15. It appears plain to me that where a Tribunal places significant weight, to use the Tribunal's words, on a piece of evidence in the circumstances described, that evidence must be held to be an integral part of the reason or part of the reason for affirming the decision under review. In my view, the submission by the solicitor for the Applicant correctly identifies the reliance on that information as evidence that has not been provided in writing to the Applicant for comment as required under s.359A and that appears to me to be a correct identification of a jurisdictional error. Unfortunately for the Applicant, that does not decide the issue.

  16. The question of the inconsistency between the evidence of the Applicant and the evidence of the Nominator, which was not to my mind information caught by s.359A, constitutes a ground upon which the Tribunal could rely for affirming the decision. The fact that I have found a jurisdictional error to my mind indicates that it would be inappropriate to find that the application is not competent under the provisions of sub-section 477(1)(a) of the Act.

  17. It is noteworthy, however, that the Applicants delayed for some reason in commencing these proceedings and delay is a ground for refusal to grant relief on a discretionary basis. The decision was made on 15th September 2003 and the Applicants therefore are deemed to have been notified on 22nd September 2003. The application was not filed at the Federal Magistrates Court until 27th October 2005.  That is a delay of more than two years.

  18. There is an explanation of part of the delay. On 19th May 2004 the Applicant's migration agent made a submission to the Minister for the exercise of discretion under s.351 of the Migration Act to substitute a more favourable decision. That application was unsuccessful. Unwarrantable and unexplained or poorly explained delay is a ground for refusal of relief on a discretionary basis. Whilst the submission under s.351 made by the migration agent is a reason for part of the delay in commencing these proceedings, it is not an excuse or an explanation.

  19. In my view, the delay is of such length that it constitutes a delay of more than a year, which is the relevant time as set out by McHugh J in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67. Even if I were satisfied that there were a jurisdictional error that would justify the granting of relief, in my view the delay by the Applicant would be sufficient to justify a refusal of relief. In all the circumstances, the application must therefore be dismissed.

  20. I note the submissions made by Mr Turner that there is the situation that there was a jurisdictional error found, although it was not sufficient to get the Applicant over the line. I am not of the view that that justifies an order that the parties should pay their own costs.  In my view, there should be some award of costs on behalf of a successful Respondent.  I also note that the applicant has his own costs to meet, which is not a ground for reducing an order for costs but would be a ground for granting time to pay. It is for those reasons that I order that the applicant is to pay the First Respondent's costs, which I will fix in the sum of $4,000.00. I will allow in the circumstances eight months to pay, which is a longer period than I would normally allow.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  1 February 2006

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Cases Citing This Decision

1

Vu v Minister for Immigration and Anor (No.2) [2007] FMCA 800