FEDERAL COURT OF AUSTRALIA

Trinh v Minister for Immigration and Citizenship [2013] FCA 611

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s cost of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an appeal from orders made by the Federal Circuit Court of Australia (formerly the Federal Magistrates Court) on 16 November 2012. The Judge dismissed an application for review of a decision of the Migration Review Tribunal made on 13 January 2012. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellants permanent Partner (Residence) (Class BS) visas.

2    The first appellant is a citizen of Vietnam and was born in Tra Vinh, Vietnam in 1965. She resided in Germany and was married until that marriage ended in divorce in February 2001. She arrived in Australia on 13 February 2003 with her children, the second and third appellants.

3    She remarried Mr Hoang Nam Duong, who was also born in Tra Vinh, Vietnam. He became an Australia citizen in 1984. He was also divorced in 2001. The first appellant and Mr Duong married in Australia on 20 February 2003. Mr Duong was the first appellant’s sponsoring spouse for the Partner (Residence) (Class BS) visa.

4    To obtain a Partner (Residence) (Class BS) visa, the appellants had to satisfy a number of requirements under the Migration Regulations 1994 (Cth) (the Regulations). Relevant to this appeal was the requirement that the first appellant was, at the time of the decision, the spouse of the sponsoring spouse within the meaning of r 1.15A (see cl 801.221 of Schedule 2 to the Regulations).

5    In order to find that the appellant was the spouse of the sponsoring spouse, the Tribunal had to be satisfied that there was a mutual commitment to a shared life as husband and wife, to the exclusion of all others, that the relationship was genuine and continuing, and that the couple lived together, or did not live separately and apart on a permanent basis (see rr 1.15A(1A)(b) and 1.15A(2)(c)). The Tribunal had to have regard to all the circumstances of the relationship and in particular, the considerations set out in r 1.15A(3) concerning financial and social aspects, the nature of the household and the nature of the persons’ commitment to each other.

6    Before the Tribunal the first appellant and the sponsoring spouse gave evidence on these matters. At the conclusion of the hearing, the Tribunal was concerned with inconsistencies between the evidence given by the first appellant and the sponsoring spouse. Following the hearing the Tribunal sent the first appellant a letter purportedly under s 359A of the Migration Act 1958 (Cth) (Migration Act) in which these concerns were raised and in which the first appellant was asked for comment on these matters. The first appellant responded to the letter by sending to the Tribunal a statutory declaration which dealt with the points raised by the Tribunal.

7    Mr Fernandez, who appeared on behalf of the appellants, relied upon one argument on the appeal. Although the notice of appeal also articulated a number of other grounds, he said that the other grounds all depended upon the success of the following ground:

The Tribunal erred in invoking Section 359A of the Migration Act when such invocation was not applicable pursuant to Sub Section (4) of the Act.

8    Section 359A(1) and (4) of the Migration Act provide:

(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.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information.

9    Mr Fernandez submitted that because the information requested in the letter was not information to which s 359A(4) applied, the letter from the Tribunal was not authorised by s 359A. Mr Fernandez also submitted that the Tribunal made a jurisdictional error in determining the matter by relying on information which was supplied by the first appellant in response to the letter. The written submission filed by Mr Fernandez stated:

14.    By referring to the questions and answers given by the Appellant pursuant to the Section 359A notice and giving consideration to it the Tribunal has allowed the decision making process to be infected with irrelevant considerations. The notice was invalid and any references to the answers in the decision have no validity in law.

15.    Due to a consideration of matters stated in the notice and a consideration of answers to the notice which were not permitted in law to be included in the decision making process the Tribunal has failed to take into consideration relevant matters. Namely the thorough examination of the criteria for the spouse visa application under regulation 1.15(a)(3).

10    Mr Fernandez contended that the information provided by the first appellant in response to the letter was information already before the Tribunal for the purpose of the review. Mr Fernandez said that the material had been given to the delegate of the Minister in their review. Although Mr Fernandez did not specifically point to which particular subsection of s 359A(4) the appellants relied on, it appeared from these submissions that the appellants relied upon s 359A(4)(b) or (ba).

11    Although not established as a fact, for the purpose of the argument it will be assumed that the information sought by the letter was already before the Tribunal by virtue of it being before the delegate, and also that it was provided by the appellants for the purpose of the application for review. In other words it was information which fell within the exclusion in s 359A(4)(b) and/or (ba). Again, while not established, it will be assumed that the Tribunal relied on the information provided by the appellants in response to the letter as the reason for affirming the decision under review.

12    Section 359A imposes on the Tribunal an obligation to give particulars of certain information to the applicant. The purpose of s 359A(4) is to limit the scope of that obligation. Subsection 4 does not prevent the Tribunal from seeking from the applicant further information beyond the type of information to which the obligation in s 359A(1) applies.

13    The same conclusion was reached in relation to s 424A(3), which is the comparable provision applicable to the Refugee Review Tribunal. In MZYUN v Minister for Immigration and Citizenship [2013] FCA 51, Dodds-Streeton J said at [48]:

In my opinion, the Federal Magistrate did not err in concluding that, in the circumstances, there was no breach of s 424A. Section 424A(3) neither expressly nor by implication prohibits the Tribunal from providing, an appellant with, and inviting comment on, information that the subsection exempts from the application of the section. As the Federal Magistrate held, subsection (3) merely defines categories of information which are not subject to the obligation in s 424A(1).

14    For these reasons there was no error in the Tribunal considering and relying on the information obtained by the letter.

15    Consequently the appeal must be dismissed.

Associate:

Dated:    20 June 2013