Nguyen v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from an order of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Migration Review Tribunal (the MRT) affirming a decision not to grant the first appellant a Partner (Migrant) (Class BC) visa on the basis of her alleged relationship with her sponsor, an Australian citizen (Nguyen v Minister for Immigration [2013] FCCA 1441). At the commencement of the hearing leave was sought and granted for the second appellant, the first appellant's son, to discontinue the appeal, subject to costs. 2 There is a single ground of appeal, namely: The Federal Circuit Court Judge applied the wrong test to whether the Second Respondent [the MRT] denied the Appellants procedural fairness. 3 The particulars to the appeal ground are identified in the amended notice of appeal as follows: a. The Tribunal found at paragraph 21 "…While it may be plausible for a teenage son to be unhappy with a father's remarriage, the Tribunal does not accept that Mr Nguyen's son would deny that Ms Nguyen actually lived at the address. b. There was no rationally probative evidence to support this finding which is based on speculation and/or guesswork. c. The Federal Circuit Court applied the test whether there were logical grounds to support this finding. d. The correct test is whether the finding was based on rationally probative evidence. 4 The appellants had contended before the primary judge that they had been denied procedural fairness because the MRT had based its decision, in part, on speculation or guesswork rather than rationally probative evidence (citing, in support, Minister for Immigration and Multicultural Affairs v Pochi (1980) 4 ALD 139 and Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26). The primary judge did not accept that there had been any denial of procedural fairness on this ground. The first appellant now contends that instead of considering whether there was rationally probative evidence to support a particular challenged finding, the primary judge considered whether there were logical grounds for the MRT to make the finding. Accordingly, it is said that the primary judge erred. 5 The appeal ground cannot be sustained. 6 First, the primary judge was well aware that the challenged finding related to evidence from the sponsor's son. The MRT, as the primary judge put it at [56]: had regard to the fact that the sponsor's son gave information to the Department that the Applicant did not live with his father and found that while it may be plausible for a teenage son to be unhappy with a father's remarriage, it did not accept that the son would deny that Ms Nguyen actually lived at the address. 7 This conclusion was said to involve mere speculation or guesswork on the part of the MRT rather than rationally probative evidence, thereby giving rise to the asserted jurisdictional error. 8 Second, the primary judge correctly identified the relevant principles at [57]-[64]. 9 Third, the primary judge at [65] and [69] accepted in favour of the appellants that there was room for the operation of the common law principles of procedural fairness notwithstanding that s 375A of the Migration Act 1958 (Cth) stated that Division 5 of Part 5 was taken to be an exhaustive statement of the requirements of natural justice (applying Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [42] and Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; [2011] FCAFC 21 at [39] per Buchanan J). 10 Fourth, and contrary to the first appellant's contentions, the primary judge considered whether the finding was supported by rationally probative evidence. So much is plain from [82] of the primary judge's reasons as follows: The Tribunal's failure to accept or to be satisfied that the sponsor's son would deny that Ms Nguyen actually lived at the address for the reason given by way of explanation (in particular that he was motivated by revenge) is not such that it can be said that the Tribunal based its decision on speculation or guesswork, rather than rationally or reasonably probative evidence in a manner constituting jurisdictional error. What was in issue was whether the Tribunal accepted the son's undisputed evidence during the home visit (in circumstances where he lived in the home and other matters observed during the visit also suggested Ms Nguyen and the sponsor were not co-habitating) or accepted the explanations from Ms Nguyen and the sponsor suggesting that the son had lied during the home visit. 11 The focus on [83] and [84] of the primary judge's reasons as disclosing error, by referring to "logical grounds" rather than "rationally probative evidence", is misconceived. It involves reading those paragraphs out of context and on an erroneous assumption that the primary judge was dealing with a different issue. It is clear on any rational reading of the primary judge's reasons that [83] and [84], as well as [85], are a continuation of the process of reasoning in [82]. The primary judge said: 83. A fair reading of the Tribunal's decision discloses that the Tribunal had regard to all the evidence of the home visit and considered the Applicant's (and the sponsor's) suggestions as to why the son would say the Applicant did not live with the sponsor. Its failure to accept the Applicant's explanation that the sponsor's son had lied to the departmental officer about whether the Applicant lived in the Chester Hill house for any of the reasons suggested was open on the evidence before it. It cannot be characterised as the result of "guesswork", "speculation or suspicion" in the sense considered in Pochi and Rawson Finances. 84. Even if a different decision-maker might have reached a different conclusion as to whether or not he or she accepted that the sponsor's son would deny that the Applicant actually lived at his address, the fact that the evidence would reasonably admit of a different conclusion in that respect does not suffice to establish error of law (see Rawson Finances at [83] per Jagot J). The evidence before the Tribunal reasonably admitted its conclusion that it did not accept that the sponsor's son would deny that Ms Nguyen lived at the address for the reasons suggested by the Applicant and the sponsor. There was a clear evidentiary basis for the Tribunal's finding that the son stated that Ms Nguyen did not live at his address. There were logical grounds for the Tribunal to find that, despite unhappiness with his father's marriage, it did not accept that the son would have falsely stated to Departmental officers that Ms Nguyen did not live at the Chester Hill address (see Rawson Finances at [66] per Jessup J). The evidence before the Tribunal reasonably admitted such a finding. 85. This is not a case in which the principles in relation to the absence of probative evidence of a fact assist the Applicant. Nor is there is any support for the proposition that the Tribunal's finding in this respect was based on mere conjecture. Rather, the Tribunal did not accept an explanation given for the clear evidence that the sponsor's son had stated that the Applicant did not live with him and his father. 12 Fifth, the primary judge's reasons, read as a whole, provide a comprehensive, correct, indeed compelling, rejection of the appellants' arguments about this issue. These arguments warranted short shrift. A complete answer to the arguments is that it is clear from the MRT's reasons that the MRT's conclusion about the son's evidence was a properly founded inference rather than mere speculation. It was properly founded because there was a wealth of other material that tended to suggest the son had indeed not denied that the first appellant lived at the address for any reason other than it reflected the truth. The other evidence before and relied upon by the MRT included the minute of the home visit by the Department referred to in the primary judge's reasons at [27] and [28], the lack of credibility of the first appellant and sponsor referred to by the primary judge at [40] and [48] (amongst other places), the status of the sponsor's earlier marriage referred to by the primary judge at [45], the sponsor's history of promising to sponsor people from Vietnam referred to by the primary judge at [46], inconsistences about how the first appellant was paid referred to by the primary judge at [47], and the lack of material indicating any joint liabilities or assets referred to by the primary judge at [49]. All of this material was available to the MRT when it refused to accept that the son had falsely denied that the first appellant lived with the sponsor because he was unhappy about the marriage and/or having to share his room. 13 The arguments on the appeal deserve equally short shrift. Apart from the fact that the MRT manifestly acted on rationally probative evidence and the primary judge dealt squarely with this issue, the arguments incorrectly assume that the formula "rationally probative evidence" involves a principle separate and distinct from the requirements for an administrative decision-maker to make a decision reasonably open on the evidence or supported by logical grounds. This is not so as the primary judge recognised at [63] and [64] in citing Rawson Finances at [83] and [84]. The various formulae "rationally probative "evidence", "logical grounds" and "reasonably open" share a common rationale and inform each other. The inescapable fact, and the one which ensures that the appeal must fail, is that the primary judge was correct to conclude that the MRT's decision, including its finding about the evidence from the son, was open on the material before the MRT. Once that conclusion was reached (as it had to be on the facts of this case) the labels "rationally probative evidence" and "no logical grounds" were effectively interchangeable. 14 The assertion of error by the primary judge, accordingly, must be rejected, and the appeal dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot, Yates, Rangiah.