FEDERAL COURT OF AUSTRALIA

Truong v Minister for Immigration & Multicultural &

Indigenous Affairs [2005] FCA 1380

MY HIEM TRUONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 419 OF 2005

NORTH J

30 AUGUST 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  That the appellant pay the respondent's costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     Before the Court is an appeal against a decision of Federal Magistrate McInnis delivered on 15 April 2005.  The Federal Magistrate dismissed an application for the review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 28 August 2003.  The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the appellant a spouse visa. 

2                     The appellant, who is a citizen of Vietnam, married Mr Ngo in Vietnam on 25 May 1998.  Mr Ngo is an Australian citizen who was born in Vietnam.  The appellant applied for a spouse visa on 30 June 1999 and the nominator was Mr Ngo.  A temporary spouse visa was granted on 25 May 2000, and the appellant came to Australia shortly afterwards to take up residence with her husband. 

3                     On 23 October 2002 a delegate of the respondent refused to grant the appellant a permanent spouse visa.  In part, the delegate acted on the basis that the appellant had failed to respond to several requests for further information about her case.  Apparently the appellant had relied upon a relative to provide further information and that relative had failed to pass on the delegate's letters to her.  The issue before the Tribunal was whether the appellant satisfied the provisions of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the regulations’) for the grant of a subclass 100 spouse visa.

The Statutory context

4                     Clause 100.22 set out the criteria to be satisfied at the time of decision.  Clause 100.22 (2)(b) required that the appellant was the spouse of the sponsoring spouse.  Reg 1.15A defined the meaning of ‘spouse’ for the purpose of the regulations, and Reg 1.15A(i) relevantly provided that a person was the spouse of another if the two persons were in a married relationship, as described in sub regulation (1A).  Sub regulation (1A) relevantly provided that persons were in a married relationship if they were married to each other under a marriage that was recognised as valid for the purposes of the Act and the Minister was satisfied that the relationship between them was genuine and continuing.  Then Reg 1.15A (3) sets out a series of mandatory considerations to be taken into account in determining whether two persons were in a married relationship.  Reg 1.15A(5) provided that if two persons have been living together at the same address for six months or longer, that fact was to be taken to be strong evidence that the relationship was genuine and continuing, but a relationship of shorter duration was not to be taken not to be genuine and continuing only for that reason. 

The Decision of the Tribunal

5                     The Tribunal stated the issue before it in [8] as follows:

            The issue in the present case is whether or not the visa applicant continues to be the spouse of the nominator at the date of decision.

6                     The Tribunal then summarised the evidence, and, under the heading ‘Discussions and Findings’, set out the reasons for rejecting the appellant's application:

32.       The criteria for a subclass 100 visa, relevant to his review, are set out in subclause 100.221.  There is no time of application criteria to be satisfied by virtue of the requirement that the visa applicant has already been assessed for and granted a subclass 309 visa. It is required that the visa applicant continue to be the spouse of the nominator and that the visa applicant continues to be nominated by the nominating spouse of the nominator and that the parties to the spousal relationship have not changed. 

33.       Regulation 1.15A contains the test for determining whether one person is the ‘spouse’ of another person, whether in a married of a de facto relationship.  In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court held that subregulation 1.15A (3) set out mandatory considerations.  Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3).  These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons’ commitment to each other. 

34.       In Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, Loughlin J, 29 November 1991) the Court stated:

It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at the date of the application for the PEPAE – 7 February 1990.  But the evidence of the subsequent history is only relevant so long as it “tends logically to show the existence or non-existence of facts relevant to the issue to be determined.” : Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at p. 160 per Deane J. 

35.       Having regard to the considerations for a spousal relationship set out in regulation 1.15A at the time of the application and at the time of decision, the evidence and issues are discussed under the following headings:

            The qualifying elements for a married relationship

The visa applicant and the nominator were married to each other in Vietnam on 25 May 2000 (D1, f 11).  At the time of the application the visa applicant and the nominator were married to each other under a marriage that is recognised as valid for the purposes of the Act.  At the time of decision they are still married to each other. 

            The financial aspects of the relationship

There is no evidence that, on a personal level, the parties have combined their affairs and that they share assets and liabilities other than a savings account.  There is one electricity account and one gas account in the parties names in May and June 2003.  The parties have provided evidence that they share a partnership in a business however, apart from the registration of that business, and the use of both their names in the business name, no details of how the business operations or profits are shared have been provided.  Although many spouses are also business partners, without evidence of personal financial aspects of the relationship, a shared business does not of itself indicate a genuine personal relationship or marriage.  Both applicants were dressmakers prior to their marriage, and the Tribunal considers the evidence provided to be more indicative of a business arrangement than a genuine marriage. 

            The nature of the household

Letters from the Bank of Melbourne and the Australian Taxation Office show both parties living at the address in Jocelyn St, Lalo as at August 2001.  It is clear however, that this is also provided as the business address on the certificate of registration of the business. No independent evidence of cohabitation or the nature of the household has been provided.  On the face of it, in the Tribunal’s view, the information provided is equally consistent with the running of a business. 

The social aspects of the relationship

Brief statutory declarations from 2 relatives of the parties have been provided, written in November 2001. While they attest  to the genuineness of the relationship, they are vague and lacking in detail.  There are no current statements from family members and friends as at the date of the present decision.  Photographs of the parties together with family and friends have been provided.  In one of these the nominator is lying in bed wearing a suit jacket, and, although the parties may be known to each other socially, the photographs are not necessarily consistent with the fact that they are in a spousal relationship. 

The nature of the persons’ commitment to each other:

The parties stated in their statutory declarations that they intended to live together for the rest of their lives.  These statutory declarations were very brief, and did not provide any further details as to their relationship.  The visa applicant arrived in Australia 3 years ago, however no independent evidence has been provided that they have lived together or maintained their relationship for the duration of her residence of Australia.  When Ms Tran, who lives in the house, was asked if there was anything she wished to add to her evidence, she said nothing about the parties relationship but simply said that she attends to her business and they tend to theirs independently.

Whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others

While the evidence suggests that the nominator is currently residing at Jocelyn St, Lalor, the Tribunal considers the information provided and the explanations given do not support the fact that there is a genuine married relationship and long-term commitment to a married relationship between the parties, although the Tribunal acknowledges that subregulation 1.15A(5) provides that living together at the same address for 6 months or longer is to be taken to be strong evidence that a relationship is genuine and continuing. 

There is little independent evidence that the relationship has continued for the duration of the visa applicant's stay in Australia, or continues today. The visa applicant has provided 2 statutory declarations from relatives stating that the relationship is genuine and that they believe it will last forever. However, these statements were written 20 months ago and there is no further evidence that the relationship is ongoing. The mutual wills which have been submitted by the parties were executed on 15 July 2003 which is about 10 days after the parties were advised of the date of the hearing. The Tribunal does not consider that the mutual wills which have been executed almost three years after the date of application assist the parties. Mutual wills are revocable documents and in the Tribunal's view, have been contrived and executed in the present case for the purposes of the Tribunal hearing. The Tribunal takes a similar view in relation to the photographs which have been produced, in anticipation of the hearing. 

Whether the persons live together, or do not live separately and apart on a permanent basis

Very little independent evidence has been submitted to confirm that the parties live together as a committed couple, as opposed to running a business from common premises at which they reside. The evidence indicates that they live with other people but does not in the Tribunal's view, indicate anything further. The evidence relating to the nature of the household and the respective roles which the parties undertake was not, in the Tribunal's view, indicative of a committed relationship. It is equally consistent with a relationship of convenience. The parties socialise very little considering that the visa applicant has been in Australia for approximately three years. The evidence indicates that they effectively socialise with one friend of the nominator who is also involved with him in business. 

The Arguments on Appeal

7                     The appellant was represented on the appeal by Mr Morfuni, SC, who elaborated on a number of the grounds of appeal. 

8                     The first ground of appeal alleged that:

            The learned Federal Magistrate erred in deciding that there was no jurisdictional error by the Migration Review Tribunal.

9                     Reg 1A requires the Tribunal to assess at the time of decision whether the relationship is genuine and continuing.  The first ground of appeal alleges that the Tribunal applied the wrong test by requiring proof that the relationship had existed, endured and been maintained over the period from the date of grant of the temporary visa until the date of hearing.  Some examples of the use of language by the Tribunal were referred to by the Federal Magistrate.  For instance, the Tribunal said at [32]:

            It is required that the visa applicant continue to be the spouse of the nominator, and that the visa applicant continues to be nominated by the nominating spouse, and that the parties to the spousal relationship have not changed.

10                  At [37] the Tribunal found that the visa appellant was in a spousal relationship with the nominator at the time of the visa application.  However, the Tribunal also found:

            ...that the visa applicant does not continue to be the spouse of the nominator.

11                  The Federal Magistrate also drew attention to the reference at [35] of the Tribunal decision where the Tribunal said:

            The visa applicant arrived in Australia 3 years ago, however, no independent evidence has been provided that they have lived together or maintained their relationship for the duration of her residence in Australia.

And later at [35] the Tribunal said:

            There is little independent evidence that the relationship has continued for the duration of the visa applicant's stay in Australia or continues today.

12                  The Federal Magistrate apparently regarded some of the use of language by the Tribunal as ‘unfortunate’.  However, it is clear from the decision of the Tribunal that the Tribunal understood that it was required to view the facts as at the date of the decision and that it needed to determine whether the relationship was, as at that date, continuing and was genuine.  So much can be seen from that part of [8] extracted at [5] of these reasons, and indeed from a number of the paragraphs referred to above.  Perhaps the high point of the appellant's case is the reference in [35] to the passage concerning the duration of the appellant's residence in Australia.

13                  These and other similar references must be seen against the task that the Tribunal was performing.  It was perfectly legitimate for the Tribunal to take account of the evidence presented to it by the appellant of the nature of the relationship preceding the date of decision in order to come to a conclusion about the genuineness and even the continuance of the relationship.  The passages do not demonstrate the adoption of a wrong test by the Tribunal.  Rather, the Tribunal made an assessment of the relationship prior to the date of decision in order to inform the decision concerning the relationship as at that date.

14                  The second ground of appeal asserted that the Federal Magistrate erred in deciding that the Tribunal did not apply the wrong test in determining whether the appellant fulfilled the criteria for the grant of the visa.  Mr Morfuni explained that this ground related to the application of Reg 1.15A(5).  The appellant argued that the regulation created a statutory presumption in favour of the existence of a spousal relationship, unless there is evidence to the contrary, where cohabitation of six months was shown.

15                  It can hardly be said that the learned Federal Magistrate erred in relation to this argument, because the argument was not raised before him.  Consequently, the appellant sought leave to raise the argument for the first time on appeal.  Leave will be given in circumstances where it is in the interests of justice for an argument to be raised for the first time at the appellate stage.  One of the relevant factors in determining whether such leave will be granted is whether there is a reasonable prospect of success on the argument: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[25].

16                  In my view, there is no such prospect for success on this ground, and leave should be refused.  The Tribunal appreciated that Reg 1.15A(5) existed and understood how it should be applied.  When considering whether there was a mutual commitment to a shared life as husband and wife, the Tribunal said at [35]:

            While the evidence suggests that the nominator is currently residing at Jocelyn St, Lalor, the Tribunal considers the information provided and the explanations given do not support the fact that there is a genuine married relationship and long-term commitment to a married relationship between the parties, although the Tribunal acknowledges that sub-regulation 1.15(A)(5) provides that living together at the same address for 6 months or longer is to be taken to be strong evidence that a relationship is genuine and continuing.

17                  It is obvious from this passage that the Tribunal took into account the operation of the Reg 1.15A(5), but regarded the strong evidence of cohabitation as being outweighed by the other evidence that had been led by the appellant, and that had been evaluated by the Tribunal. 

18                  Mr Morfuni contended in oral argument on the appeal, however, that the analysis of that other evidence had been inadequate and that the Tribunal merely paid lip-service to the regulation. 

19                  He submitted very persuasively that the relationship which was presented to the Tribunal was of a loving couple who not only shared a business relationship but also a social and family relationship.  That approach, however, involves a quarrel with the Tribunal's fact-finding exercise.  It was for the Tribunal to determine the weight to be given to the evidence which had been led before it.  The Tribunal did not regard that evidence as strong enough to establish the necessary relationship.  The Tribunal was entitled to come to that view, even if it was a view which might not be shared by another decision-maker.  Consequently, this proposed ground of appeal is bound to fail, and leave to raise it for the first time on appeal is refused. 

20                  Ground three of the notice of appeal contended that the Tribunal failed to assess the evidence cumulatively, but rather had looked at each individual mandatory consideration separately.  In the course of the oral hearing Mr Morfuni indicated that this ground was not pursued.  He was correct to take that course. 

21                  Ground four of the notice of the appeal stated:

The Learned Federal Magistrate erred in deciding that the Migration Review Tribunal had complied with the requirements of section 359(A) of the Act.

22                  Whilst this ground was pursued, it was not pursued with much vigour, and understandably so.  Section 359(A) provides:

            Subject to sub-section (2), the Tribunal must:

            (a) give to the applicant, in the way the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; […]

It is unnecessary to set out any further part of the section.  It was submitted that the Tribunal did not comply with s359(A) because it failed to provide the appellant with a copy of a minute from a case officer to the presiding member.  This document attached a first draft of a proposed decision in the case, and certain advice about whether pursuant to s359A the appellant should be invited to comment on certain matters. 

23                  Mr Morfuni argued that the draft decision from the case officer amounted to a view concerning the credit of the appellant and that the case officer's view of the appellant's credit was information within the meaning of s 359(A). Consequently, s359A required that information to be conveyed to the appellant.  Mr Morfuni rightly conceded his difficulty in arguing that a document of this nature amounts to information at all: Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087; (2001) 113 FCR 456.  But even if the minute and the draft decision amounted to information within the meaning of s 359A, that information was not the reason or part of the reason for affirming the decision under review, and hence the operation of the section was not attracted.  If, as Mr Morfuni submitted, the Tribunal relied upon an adverse credit finding to affirm the decision under review, the draft decision of the case officer did not itself go to the question.  It did not constitute evidence relating to the credit of the appellant, but rather was a commentary on that issue.  I doubt that the approach of either the case officer or the Tribunal can be described as having rejected the appellant's case on the grounds of an adverse credit finding, but even if it were so, the draft decision is not evidence on that issue.  At the highest, it is information about the view of the Tribunal member concerning the question of credit.  But that way it is clear that the Tribunal did not rely on the case officer's view as a reason for affirming, or part of the reason for affirming, the decision under review.  It was completely immaterial, on the face of the Tribunal's decision, what view the case officer formed about the credit or the case of the appellant. 

24                  The final ground of appeal alleged that:

The Learned Federal Magistrate erred in deciding that the Migration Review Tribunal had not breached the rules of procedural fairness in relation to the hearing on 18 August 2003.

25                  There were a number of strands to this part of the argument.  It was argued that the Tribunal had come to a view that the relationship between the appellant and her husband was in essence a business relationship and not a marital relationship.  Mr Morfuni argued that, having come to that preliminary view, the Tribunal was obliged to explain to the appellant that this was the view which it had formed.  It was a denial of procedural fairness to withhold such an explanation. 

26                  Mr Morfuni put the argument slightly differently by arguing that to fail to disclose this characterisation of the case to the appellant, the Tribunal misled her into a false sense of security and prevented her providing an answer to that view of the case. 

27                  Then again, Mr Morfuni contended that when the Tribunal raised, in the s 359A letter, the question of the place of residence of the husband by reference to an address on his driver's licence, the Tribunal misled the appellant into thinking that this was the only issue which stood in the way of her success in the application.

28                  And finally, Mr Morfuni argued that the Tribunal never raised with the appellant the problem, as he put it, with her credit.  There are a number of answers to these propositions.  The Tribunal is not obliged to disclose to the claimant its subjective mental process:  Commissioner for the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592.  Neither was the Tribunal obliged to make a case for the appellant. 

29                  The appellant was given a full opportunity at the hearing to explain the circumstances of her relationship.  She was asked open-ended questions on a whole variety of issues going to the relationship.  She was asked about the financial aspects of her relationship, and about the social aspects.  It was for the appellant to present the evidence necessary to satisfy the regulations.  It was not necessary for the Tribunal to forecast its view on the evidence prior to judgment being given.  Whilst the transcript of the proceeding before the Tribunal shows that the Tribunal did not indicate any preliminary views it might have about the evidence, there was no unfairness or procedural irregularity in the way the hearing was conducted. 

30                  Finally, Mr Morfuni raised an allegation of ostensible bias.  This argument was put on the basis that the failure to accept the evidence of the appellant or to draw inferences favourable to the appellant indicated that the Tribunal approached the case with a closed mind.

31                  Mr Morfuni relied on the case of Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228, (2001) 60 ALD 145.  In that case, an adverse finding of credit was said to infect the whole of the assessment of the remaining evidence in the case.  This is a very different situation.  Indeed the basis upon which this application failed before the Tribunal was not by reason of a rejection of evidence given by the appellant and her witnesses, but rather by the characterisation of that evidence.  The evidence was accepted, but did not prove the type of relationship contemplated by the regulations.  The decision itself demonstrates a weighing of the evidence in a case which was made difficult for the Tribunal by the paucity of the material put before the Tribunal.  The Tribunal comments on this.  For instance, in relation to the nature of the relationship, evidence was led by way of statutory declaration from a cousin of the husband.  This was in such brief and unelaborated terms, and was several years out of date at the time of the hearing, that it is not surprising that the Tribunal found itself without sufficient evidence to establish the relationship.

32                  One is, however, left with a sense that the result of the Tribunal hearing may well have been caused by a failure to provide evidence which might have been available, rather than from the fact that such evidence did not exist.  However, the factual analysis of the case is a matter for the Tribunal.  It is not for the Court to interfere in that function.  In relation to the matters upon which I am able to rule upon the Tribunal did not commit any jurisdictional error.

33                  I therefore agree with the Federal Magistrate that the challenge to the Tribunal's decision cannot be maintained, and as a result the appeal must be dismissed with costs.

Associate:

Dated:              26 September 2005