Nguyen v Minister for Immigration and Border Protection

Federal Court of Australia|2019-02-22|Before: O'Callaghan J

The appeal be dismissed.
The appellant pay the costs of the first respondent, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 By Notice of Appeal filed in this Court on 25 September 2018, the appellant appeals from the whole of the judgment and the orders of the Federal Circuit Court of Australia (the Federal Circuit Court) delivered on 6 September 2018. The Federal Circuit Court dismissed the appellant's application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming a decision of a delegate of the first respondent, the Minister for Border Protection and Immigration (the Minister) not to grant the appellant a Partner (Migrant) (Class BC) Visa (the visa) under the Migration Act 1958 (Cth) (the Act).

The Facts 2 The appellant is a citizen of Vietnam. On 23 October 2012, the appellant applied for both a Partner (Provisional) (Class UF) Partner (Provisional) Visa (the provisional visa) and the visa. A provisional visa was granted to the appellant on 17 April 2013. 3 On 14 January 2016, a delegate of the Minister refused to grant the appellant the visa essentially because the delegate determined that the appellant was not the spouse or de facto partner of his sponsor, Ms Thuy Thi Le (sponsor). 4 On 5 February 2016, the appellant applied to the Tribunal for review of that decision. 5 On 29 March 2016, a delegate of the Minister certified that certain identified folios contained on the appellant's departmental file were subject to s 375A of the Act (the certificate). The delegate certified that it would be contrary to the public interest to disclose the identified folios to any person other than the Tribunal as the documents referred to "internal Department systems and processes". 6 The appellant put forward various materials to the Tribunal including phone bills, bank account statements, evidence of his travel within Australia, statutory declarations of various witnesses, as well as written submissions. On 3 February 2017, the appellant appeared at a hearing before the Tribunal, assisted by an interpreter. 7 On 16 February 2017, the applicant's authorised representative wrote to the Tribunal in response to the Tribunal's disclosure about the existence of the certificate. The applicant's authorised representative did not challenge the validity of the certificate, but urged the Tribunal to provide the particulars of any information which was adverse to the appellant. 8 On 17 February 2017, the Tribunal affirmed the Minister's delegate's decision.

THE TRIBUNAL'S DECISION 9 At [8] to [19] of its decision, the Tribunal set out the key claims and evidence of the appellant in support of his review application. The Tribunal accepted that both the appellant and the sponsor had been previously married to other people, that each had children from their prior relationships, that they did not live together, and that the appellant visited the sponsor often. The Tribunal also received evidence that the appellant and the sponsor had a joint bank account and ongoing telephone contact, as well as statutory declarations of third parties and photographs "to further evidence their relationship" (at [15]). As the Tribunal recorded, in late 2014 or early 2015, the department determined to consider the appellant's and the sponsor's relationship. A site visit was conducted in September 2015 at the address at which the parties claimed to be living in Perth, at which, as the Tribunal noted (at [16]), officers: found that neither party lived […]. Further, upon interviewing the two persons then living there, one of whom claimed she had lived there for at least 12 months, neither recognised the photographs or the names of the parties when these were put to them. 10 The Tribunal also noted the following (at [17]): Immigration officers also undertook a site visit to the home the applicant was living in in Melbourne on 15 September 2015. The applicant appeared to be unaware that the sponsor was no longer living at Benara Rd and did not have an updated address for her. The observations of the immigration officers suggested that the applicant may continue to be in a relationship with his former wife, who lived nearby. 11 The Tribunal also found that the sponsor had informed immigration officers in September 2015 that she had moved from the Perth address in late July or early August 2015 (at [18]), and had then formally notified this change of address to the department (at [19]). 12 Having referred to these facts, the Tribunal then turned to its statutory task of assessing whether or not the appellant was eligible for the grant of the visa in these terms (at [22]): 'Spouse' is defined in s 5F of the Act and provides that a person is the spouse of another whether the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in r 1.15A(3), which is extracted in the attachment to this decision. 13 The Tribunal found that the appellant and the sponsor were validly married in August 2012. It then went on to consider each of the relevant matters in r 1.15A(3) of the Migration Regulations 1994 (Cth) (the Regulations), under the headings "Finances", "Household", "Social" and "Nature of the commitment". That regulation provides that the Minister must consider: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one person in the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; and (b) the nature of the household, including: (i) any joint responsibility for the care and support of children; and (ii) the living arrangements of the persons; and (iii) any sharing of the responsibility for housework; and (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married to each other; and (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; and (d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long-term one. 14 Under the heading 'Finances', from [24] to [26], the Tribunal found that the parties had a joint bank account, but did not have joint assets, liabilities or tenancy. The Tribunal also found that the appellant and the sponsor were unable to express agreement as to how much savings they actually had, or what they required as part of their goals. 15 Under the heading 'Household', from [27] to [31], the Tribunal observed that the sponsor had not visited her husband in Melbourne since he relocated there in May 2013, and also noted the number of days per year that they had spent together (at [29]). The Tribunal also heard evidence from each of the appellant and the sponsor as to the nature of the household maintained in Perth, noting that each of them gave inconsistent evidence about rent and utilities paid. The Tribunal also had regard to the appellant's explanation as to why the sponsor had not informed him that she had changed addresses in 2015. The Tribunal also found that the appellant and the sponsor had regular telephone contact. 16 Under the heading 'Social', from [32] to [33], the Tribunal noted that the sponsor had only met the appellant's daughter once, in January 2017, and that, while family members were aware of their relationship, the appellant and the sponsor were unable to point to any evidence of widespread social recognition of their relationship. 17 Under the heading 'Nature of the commitment', from [34] to [35], the Tribunal observed that for the majority of the time that the appellant had been in Australia (4 years), he had been living apart from the sponsor. Noting the employment opportunities they each pursued, the Tribunal considered that the explanations proffered as to why the sponsor could not join the appellant in Melbourne were vague and unsatisfactory, as were their responses to its query about the financial benefit of paying for two households over that 4 year period. 18 At [37], the Tribunal noted the appellant's authorised representative's submission of 16 February 2017 (see above, at [7]). The Tribunal then stated that: [T]he relevant adverse information covered by the certificate was relevantly set out in the decision of the delegate of the Minister to refuse the visa, dated 14 January 2016 and set out again in paragraphs 16-17 of this decision record. 19 Having regard to all of the relevant information before it, the Tribunal concluded that the appellant and the sponsor were not in a spousal relationship at the time of its decision (at [38]).

THE FEDERAL CIRCUIT COURT PROCEEDINGS 20 On 14 March 2017, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. 21 On 17 April 2018, the Minister filed and served upon the appellant an affidavit affirmed by the Minister's solicitor on the record. The affidavit annexed all of the identified folios the subject of the certificate. The primary judge recorded at [31] of his reasons that: The material involved is extensive, running for nearly 100 pages. It includes documents headed "Partner Visa Processing", where an officer of the department expresses concerns about the genuineness of the relationship, although, on balance, recommends the approval of the visa on 2 April 2013 (see the affidavit of Siran Nyabally affirmed 16 April 2018 at annexure "SJN-1", pp.18 to 20). Thereafter, annexure "SJN-1" at pp.21 to 29, sets out a transcript of an interview with the applicant in April 2013. Extensive notes of concerns of departmental officers appear in annexure "SJN-1" at pp.32 to 47. Calculations of the dates of travel between Perth and Melbourne appear in annexure "SJN-1" p.49. Further notes expressing a suspicion with respect to the nature of the relationship appear in annexure "SJN-1" at p.50. Thereafter, notes, interviews, site visit and interview plans and movement notes appear. The notes include extensive notes of the attendances at the residence, including details of the text messages on the parties' telephone. 22 On 6 September 2018, the primary judge dismissed the appellant's application for judicial review. In his reasons for judgment, the primary judge set out the Tribunal's key findings of fact (at [10] to [20]), and then set out the appellant's grounds of application (at [23]). The learned primary judge's reasons concerning these grounds of application were as follows: (1) In relation to the first ground, being that the Tribunal had failed to have regard to a mutual intention on the part of the appellant and the sponsor to continue their relationship, the appellant's complaint was an impermissible attempt at merits review (at [24] to [26]). (2) In relation to the second, third and fourth grounds, which together broadly alleged that the Tribunal had failed to give adequate particulars of all the information covered by the certificate, and thereby failed to afford the appellant procedural fairness in its review, the primary judge concluded that, while the certificate had in fact been invalid, the substance of the relevant information covered by the certificate had been summarised briefly in the delegate's decision (at [35]). Having regard to the Tribunal's summary at [16] and [17] of its decision, the primary judge was persuaded that the substantive matters arising from the department's investigation had been provided to the appellant by the delegate, and that no further particulars would have been necessary to satisfy the Tribunal's statutory procedural fairness obligations owed to the appellant (at [37] to [39]). In the alternative, the primary judge held that it would be appropriate in the exercise of its discretion not to grant relief for jurisdictional error, because there was no practical injustice to the appellant (at [39]).

APPEAL TO THIS COURT 23 By his Notice of Appeal, the appellant raises the following grounds: 1. That His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider that s 375A certificate was invalid 2. The Tribunal did not accord the applicant procedural fairness in that it did not consider all the circumstances of the marriage. 3. The Tribunal was bias as it relied its decision heavily on the adverse information provided by the Department of Border Protection, in particular the material covered by the s375A certificate in reaching its conclusion. I was denied the opportunity to properly put my case to the Tribunal, giving rise to a reasonable apprehension that the Tribunal member was biased against his cause; 4. His Honour erred in finding that the tribunal did not fail to comply with s 358(1) of the Migration Act by not considering the witness statements in support of the marriage 5. The Tribunal failed to ask the question of whether separation is permanent, and separation depends upon my wife and my mutual intention. The Tribunal never regarded to the fact of mutual intention. 6. The Tribunal had failed to carry out is task to review the decision of the delegate, in that it was so overborne by its findings as to the credit of me and his wife that it failed to consider the case put forward by the me as to the state of the relationship at the time of decision; 7. The appellant's application clearly raises an arguable case. 8. That His Honour erred in not holding that the Tribunal made jurisdictional error as it failed to accord to the Applicants procedural fairness and natural justice: The Tribunal's decision not to give me particulars on information that had been withheld, as set out in its refusal on 17 February 2017 meant that the Tribunal decided my case without the fair hearing that I was entitled to under the Migration Act. 24 As counsel for the Minister submitted, those grounds may be summarised as follows: The Federal Circuit Court of Australia erred in not concluding that the Tribunal made a jurisdictional error by its failure to conclude the certificate was invalid (ground 1). The Tribunal did not accord the appellant procedural fairness in that it did not consider all the circumstances of the marriage (ground 2). The Tribunal was biased in that it relied upon the adverse information from the Minister's department, particularly the material covered by the certificate, and the appellant was denied the opportunity to put his case forward (ground 3). The Federal Circuit Court of Australia erred in finding that the Tribunal did not fail to comply with s 358(1) of the Act by not considering his witness statements (ground 4). The Tribunal failed to ask the question of whether separation between the appellant and the sponsor is permanent, and failed to have regard to their mutual intention (ground 5). The Tribunal failed to conduct a review, in that it was so overborne by its findings as to the credit of the appellant and the sponsor that it failed to consider the appellant's case (ground 6). The Federal Circuit Court erred in not finding the Tribunal failed to accord the appellant procedural fairness by not giving particulars of the information the subject of the certificate (ground 8). 25 Ground 7 does not raise a ground of appeal. Grounds 1, 2, 4, and 6 are new. The appellant therefore needs leave to rely on them. The Minister submitted that leave should be refused. 26 The determination of jurisdictional error is principally, in all but the most exceptional cases, to be determined by the Federal Circuit Court, not this Court in its appellate jurisdiction (Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486 at [103] to [105] (Logan J)). There is a public interest in the orderly and appropriate disposition of cases having regard to the sheer volume of cases arising under the Act. The resources of this Court are finite, and to permit too readily in cases arising under the Act the raising of points not taken in the original jurisdiction is fraught with the risk of encouraging the overwhelming of the efficient allocation of judicial resources to the timely disposal of other appeals (Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486 at [105] (Logan J)). But in this case, and in any event for reasons explained below, there is no merit in the proposed grounds 1, 2, 4 and 6.

Grounds 1 and 8 27 Section 359A(1)-(3) of the Act provides as follows: (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. 28 The relevant principles in relation to s 359A (and s 359AA and cognate provisions in other parts of the Act), may be summarised as follows: (1) The particulars that must be provided are particulars of "information", which does not extend to particulars of "subjective thought processes or determinations" or the "existence of doubts, inconsistencies or the absence of evidence" (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [23]-[28]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). (2) The information must be information that "would be the reason, or a part of the reason, for affirming the decision that is under review" (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]). (3) The information in question should in its terms involve a "rejection, denial or undermining" of the review applicant's claims relevant to the visa criteria in question: (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22]). (4) The relevant criteria depends on the Tribunal's "consideration", that is, its opinion, that certain information would be the reason, or part of the reason, for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [24]; SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [33]). (5) The section speaks of information which "would", not which "could" or "might", be the reason, or part of the reason, for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [25]). (6) The requirement to give information may not extend to a requirement to disclose the entirety of any document in which the information is contained. How much, if any, of the surrounding context in which the information appears must also be disclosed will depend upon the facts and circumstances of the particular case (SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]; referred to with approval in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [27], [32]). (7) The information that is provided must be sufficient to enable the applicant to meaningfully respond or comment to it (SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]). (8) Breach of the duty to accord procedural fairness on the part of the Tribunal constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments (Hossain v Minister for Immigration and Border Protection 92 ALJR 780 at [30], [46], and [72]; Minister for Immigration and Border Protection v SZMTA and Anor; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 at [2]). 29 In this case it is clear from the reasons of the Tribunal, as the Minister correctly submits, that the only particulars of information contained within the documents the subject of the certificate was the information contained in [16] to [17] of the delegate's decision set out at [9] and [10]. 30 That is the only information that the Tribunal recorded as part of what it described as the evidence that emanated from the documents the subject of the certificate. It is apparent from other parts of the Tribunal's reasons that [17] contains information that the appellant told them. It was the sponsor, or the sponsor and the applicant together, who told the officers and the Tribunal that the sponsor had moved from the Benara address in late July or early August in 2015 (before the site visit by the officer of the Minister's department) and it was at the Tribunal hearing that the applicant was asked why he was of the unaware of the move (see [18] and [30] of the Tribunal's reasons). 31 As to the final sentence in [17] of the Tribunal's reasons, which records observations by an officer that the appellant may have been in another relationship, it is clear from the Tribunal's reasons that that observation went nowhere. It follows that the fact that the applicant was not given access to documents the subject of the certificate is not material (see generally Hossain v Minister for Immigration and Border Protection 92 ALJR 780 at [30], [46], and [72]; Minister for Immigration and Border Protection v SZMTA and Anor; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 at [44]), because the applicant was not deprived of an opportunity to advance any case in relation to information and issues that the Tribunal considered relevant. Ground 2 32 In relation to ground 2, no attempt is made by the appellant to demonstrate how the Tribunal has specifically failed to accord him procedural fairness by "not considering all the circumstances of the marriage". The appellant does not identify any "circumstances" that the Tribunal did not, but should, have had regard to as part of its obligation to consider all of the circumstances of the relationship (see, generally, He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [73] - [79]). Ground 3 33 In relation to ground 3, the appellant, without a scintilla of evidence or any particulars, asserts that the Tribunal was biased by having regard to the material provided by the Minister's department, especially that which was the subject of the certificate. In the absence of such evidence or particulars, this ground of appeal would be bound to fail.

Ground 4 34 Ground 4 is misconceived. The appellant argues that the Tribunal breached s 358(1) of the Act. Section 358(1) provides: (1) An applicant for review by the Tribunal may give the Tribunal: (a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and (b) written arguments relating to the issues arising in relation to the decision under review. (2) The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review. 35 Quite apart from anything else, and contrary to the appellant's assertion, the Tribunal did have regard to the witness statements put forward by the appellant and the appellant does not explain how it is said that the Tribunal has failed to consider any such material. Grounds 5 and 6 36 Grounds 5 and 6 seek impermissibly to cavil with the merits of the Tribunal's ultimate factual conclusions. Satisfaction of r 1.15A(3) of the Regulations 37 The Tribunal was, of course, required to apply an active intellectual process and give proper, genuine and realistic consideration to each matter referred to in r 1.15A (see [13] above) (He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [73] - [79]). 38 In this case, the Tribunal clearly did so. It found that the appellant and the sponsor were validly married in August 2012 (at [23]). It then went on to consider, under the headings 'Finances', 'Household', 'Social' and 'Nature of the commitment', each of the relevant matters in r 1.15A(3) that had to be considered in assessing all of the circumstances of the relationship (see [13] to [17] above).

CONCLUSION 39 The appellant did not file or rely on any written submissions. At the hearing before me I asked the applicant if he wished to make any statement in his appeal. He said: Your Honour, I just want to say that this happened three or four years. I don't - there are things that I do not remember exactly, but if there was any mistake or any wrongdoing, it was - they were purely innocent mistakes. I think we all have - we all make mistakes, your Honour. There no one perfect. Since this happened, we are - my wife and I, we are still together. We still - we are happy with each other, and we work, and we live normally. If they say that our relationship is not genuine - so why we are still together and we live and work together and work normally. Since it happened, we try to be calm, and we still to go with our life; we still do things like any other ordinary citizens. We're just wanting to generate an income, but also to contribute our share to the Australia. I have not been here long. I like this country. It's a very good country, very nice country, and I work here, and I pay tax. I do my - I contribute my - to the society. That's all I - so I like this country. I think about this country - I think this country is a great country, and I love my wife, and I love my family. That's what we think, your Honour. Just asking your Honour to consider, yes, the matter. 40 The matters raised by the appellant (who was assisted by an interpreter) are not relevant to the making out of jurisdictional error. On the contrary, what he said does rather highlight that the appellant is actually inviting the court to revisit the decision of the Tribunal which, of course, it cannot do (see Attorney-General v Quin [1990] 170 CLR 1 and Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486). 41 For these reasons, I decline to grant the appellant leave to rely on new grounds 1, 2, or 4 and 6, dismiss the appeal and order the appellant pay the first respondent's costs as agreed or assessed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (2)