FEDERAL COURT OF AUSTRALIA

Lu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2062

ORDERS

THE COURT ORDERS THAT:

1.    The designation of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant is a national of Vietnam. On 13 March 2013, she applied for a Partner (Residence) (Class BS) visa on the basis of her relationship with her sponsor, whom she married in Australia in February 2013. Although this marriage was valid for the purposes of the Migration Act 1958 (Cth) (the Act), a delegate of the first respondent, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refused the application on the basis that the delegate was not satisfied that the appellant was the “spouse” of the sponsor: Migration Regulations 1994 (Cth), Sch 2, cl 801.221(2)(c); s 5F of the Act.

2    On 27 January 2017, the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirmed the delegate’s decision. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (the Federal Circuit Court). On 22 May 2019, the Federal Circuit Court dismissed the application. The appellant appeals from that judgment.

Factual Background

3    There is one ground of appeal, which concerns the question whether the primary judge erred in dismissing the appellant’s contention that the Tribunal failed to comply with s 359A of the Act, and thereby fell into jurisdictional error.

4    On 12 January 2017, the appellant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. Further, the Tribunal had before it (what it described as) a substantial amount of documentary evidence which sought to address various aspects of the relationship between the appellant and her sponsor.

5    The Tribunal was not persuaded that the documents were “dispositive of the issues at hand” (being whether the appellant and her sponsor were in a spousal relationship). The Tribunal reasoned that such documents could be obtained even if the relationship between the appellant and the sponsor was not genuine.

6    The Tribunal also had significant concerns about the appellant’s and sponsor’s evidence regarding the development of their relationship. There were two primary concerns. The first concern was the appellant’s and sponsor’s evidence regarding the timing of the relationship. The Tribunal described this evidence as “problematic”. The second concern was the appellant’s and sponsor’s evidence regarding the sponsor’s previous divorce. The Tribunal described this evidence as “not… truthful”.

7    As regards the timing of the relationship, the appellant’s evidence was that she first met the sponsor in April 2010, after he had travelled from Australia to Vietnam. She said she became engaged to the sponsor two weeks after they had met. The Tribunal continued:

10.    … The applicant told the Tribunal she liked the sponsor and thought he was gentle and caring. The sponsor also told the Tribunal that he found the applicant to be gentle. Their description of what attracted them to each other appeared studied and carefully planned. In their post-hearing statements to the Tribunal of 25 January 2017 the applicant said she never had a relationship before and was afraid of remaining single while the sponsor explained that his previous relationship failed despite spending more time to get to know each other so he felt it was the right decision and he also believed in fate. However, the Tribunal is not convinced it is possible to form a committed relationship in such a short period, within ten days of first meeting each other, particularly as the parties had no contact with each other before they first met. The applicant told the Tribunal the sponsor spent about four weeks in Vietnam and there was no reason the couple could not have spent more time with each other before committing to the relationship. The haste with which the decision was made suggests to the Tribunal that the relationship was arranged, either by the parties or their relatives, well before the sponsor travelled to Vietnam and the Tribunal does not accept their evidence that they formed the decision to enter the relationship after first meeting in person ten days after the sponsor travelled to Vietnam.

8    The appellant told the Tribunal that her family and the sponsor’s family had known each other for a long time, and that she had heard about the sponsor from her aunt. The appellant also told the Tribunal that the families had discussed the appellant’s and sponsor’s relationship before the sponsor’s travel to Vietnam in April 2010. The Tribunal continued:

12.    … there is no suggestion that the applicant and the sponsor had any communication before they met in Vietnam. That is, any discussion by family members did not involve the couple. In the Tribunal’s view, if anyone viewed this relationship as a genuine and a long term one, the applicant and the sponsor and their relatives could have made arrangements for the couple to talk to each other and get to know each other before the sponsor travelled to Vietnam and before they formed a committed relationship. Yet, neither the applicant nor the sponsor nor their relatives made any arrangements to establish such contact. In the Tribunal’s view, such lack of interest in getting to know each other, and the very brief period within which the relationship developed and before the couple engaged, suggests they do not view the relationship as a genuine one and that the relationship is nothing more than an arrangement to enable the applicant to obtain the Australian visa.

9    As regards the evidence of the sponsor’s previous divorce, the Tribunal said:

17.    The Tribunal has formed the view that the parties had been untruthful in their evidence concerning the sponsor’s divorce and more generally about the development of their relationship and the timing of their decisions. The Tribunal does not accept their claim that they met for the first time in April 2010 and had no prior knowledge of each other and that they only made the decision to marry within two weeks of the sponsor’s travel to Vietnam. In the Tribunal’s view, a much more likely explanation is that the couple, or their relatives, discussed the marriage before the sponsor travelled to Vietnam and that caused him to initiate the divorce proceedings before March 2010. The Tribunal has formed the view that the couple had fabricated their evidence on the issue. Their willingness to do so is of significant concern to the Tribunal.

10    Paragraph [18] of the Tribunal’s Decision Record is important. In order to put that paragraph in context it is necessary to know that, in the period June to August 2009, the appellant was in Australia as the holder of a visitor visa. In September 2010, she applied for another visitor visa. This application was refused:

18.    The applicant’s evidence to the Tribunal is that she applied for a visitor visa around 2010, after she and the sponsor engaged and made the decision to marry, but her application was refused. The applicant said she did not mention that she was engaged with the sponsor at that time, even though she claims at least part of her reason for travelling to Australia was to visit the sponsor. The Tribunal notes that the standard application form for sponsored Visitor visas does provide for ‘engaged’ as a relationship status. The applicant failed to disclose her engagement to the sponsor when she made the application. The applicant explained to the Tribunal that she only followed what was written on the previous application form. However, the applicant’s circumstances had changed from the time she made the first visa application and it was not sufficient for the applicant to simply copy the old form without disclosing her new circumstances. The applicant’s failure to disclose her engagement and her failure to mention the sponsor in her visitor visa application suggest the applicant provided false or misleading information to the Department in order to obtain the visa. Her willingness to do so suggests the applicant is not a person of credibility and it is of considerable concern to the Tribunal.

11    It is not known how the subject of the appellant’s application in 2010 for the visitor visa came up at the Tribunal hearing. There is no transcript before me of the Tribunal hearing or any other evidence to explain the circumstances in which this part of the appellant’s evidence was given. Further, there was no transcript or other evidence concerning this part of the Tribunal hearing before the primary judge.

12    It is possible that the appellant simply volunteered the information recorded in [18] by the Tribunal. It is also possible that the subject was initiated by questions asked by the Tribunal. The appellant submitted that I should infer that the Tribunal did not have her completed application form (the 2010 visa application) before it because, if the completed application form had been before it, the Tribunal would have referred to the form in its Decision Record rather than adverting to the “standard application form”. That is certainly possible. But I do not accept that this reasoning excludes the possibility, equally open, that the Tribunal did have the 2010 visa application before it and, I would add, produced it to the appellant. Various possibilities are open. I do not propose to adopt one of these possibilities to the exclusion of other possibilities simply on the appellant’s argument, when she could have adduced, but did not adduce, evidence on this subject at the hearing of her application for judicial review.

13    Regardless of how the subject matter came to be raised in the Tribunal, the appellant submits that [18] of the Tribunal’s Decision Record contains a finding by the Tribunal that, by not disclosing the fact of her engagement in the 2010 visitor visa application, the appellant impliedly (and positively) represented that she was not engaged to the sponsor. The appellant submitted that the Tribunal then relied on that fact for two purposes: first, to find that the appellant was not the “spouse” of the sponsor; secondly, to impugn the appellant’s credibility.

Relevant law

14    The delegate’s decision was a “Part 5-reviewable decision” for the purposes of the Act. The Tribunal’s review was required to be conducted in accordance with Div 5 of Pt 5 of the Act, which is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 357A.

15    Section 359A (within Div 5) provides, relevantly:

Information and invitation given in writing by Tribunal

(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.

(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.

(5)     A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

The primary judge’s reasons

16    The primary judge noted that counsel then appearing for the appellant had submitted that the part of the standard application form to which the Tribunal referred in [18] of the Decision Record, which the appellant had completed when making her visa application in 2010, was “information” for the purposes of s 359A of the Act which was required to be put to her. Here it would appear that counsel was referring to the “standard form” before it was completed by the appellant (i.e., the blank form), not the “standard form” as completed by the appellant (i.e., the 2010 visa application itself). The primary judge reasoned analogically (by reference to the principles developed with respect to s 424A of the Act) that “information” for the purposes of s 359A must be information that, by its terms, constitutes a rejection, denial or undermining of an applicant’s claim to be entitled to the visa for which the applicant applies. The primary judge concluded that, in the present case, the relevant part of the form was not “information” because it said “nothing about the applicant” (i.e., the appellant).

17    The primary judge said that the appellant’s real complaint was different:

29.    The applicant’s complaint appears to be directed, not to the form of application for a visa providing for “engaged” as a relationship status (which, as I have already noted, says nothing about the applicant), but to the applicant’s submitting an application for a visitor visa that failed to record the applicant was engaged, thus impliedly representing that the applicant was not engaged, contrary to the applicant’s and sponsor’s evidence that she and the sponsor were engaged. The question that arises is whether the applicant’s submitting a document that impliedly represented in 2010 that she was not engaged to any person by its terms constituted an (sic) “rejection, denial or undermining of” the applicant’s claim to be entitled to the Partner visa.

30.    The Tribunal found that the applicant’s not having recorded in her application form for a visitor visa that she was engaged was inconsistent with the evidence she and the sponsor gave that in May 2010, before she applied for a visitor visa, the applicant and sponsor were engaged to be marries; and, in turn, the Tribunal relied on that inconsistency for not accepting the applicant’s evidence that she and the sponsor first met in April 2010 and had no prior knowledge of each other, and that they only made the decision to marry within two weeks of the sponsor’s travel to Vietnam. …

18    I pause at this juncture to raise two significant matters in relation to these passages, and [17] and [18] of the Decision Record (quoted above), in the primary judge’s reasons.

19    First, in [18] of the Decision Record, the Tribunal relied on the appellant’s failure to disclose her engagement and failure to mention the sponsor in the 2010 visa application in reaching its conclusion on the appellant’s credibility. The Tribunal did not go so far as to say that the appellant impliedly represented that she was not engaged at the time she made the 2010 visa application, although this is a conclusion that would have been open to the Tribunal. It was the appellant’s willingness to conduct herself in the way criticised by the Tribunal (which included the appellant simply copying information from a prior visa application when her circumstances had changed) which suggested to the Tribunal that the appellant was “not a person of credibility”.

20    Secondly, in this part of [30] of his reasons, the primary judge appears to have conflated the Tribunal’s finding at [17] of its Decision Record and its separate finding at [18]. The finding at [17] of the Decision Record, quoted at [9] above, was a specific finding in relation to the account given by the appellant and the sponsor in relation to the development of their relationship. As expressed by the Tribunal, this finding relied on the Tribunal’s reasoning and findings at [10] – [16] of the Decision Record. The finding at [18] was an additional and general finding that the appellant was “not a person of credibility” based on “the false or misleading information [she had given] to the Department in order to obtain the [visitor] visa”.

21    The primary judge continued at [30] as follows:

30.    … As counsel for the applicant herself in effect submitted, whether or not the applicant and the sponsor had agreed to be married in the circumstances they claimed they did was not an integer of the applicant’s claims for the granting of a Partner visa. It follows, therefore, that the Tribunal’s relying on the applicant’s not disclosing in her application visitor visa that she was engaged, was not information that by its terms constituted a “rejection, denial or undermining of” the applicant’s claim that, at the time the Tribunal made its decision, the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, and they shared a genuine and continuing relationship.

22    The primary judge then noted counsel’s submission that the Tribunal’s reliance on the appellant’s non-recordal of her engagement to the sponsor affected her claim because it affected the Tribunal’s assessment of her credibility. The primary judge accepted that, in taking an adverse view of the appellant’s credibility, the Tribunal had relied, at least in part, on this fact. His Honour noted, however, that the relevant question posed by s 359A in the instant case was whether the appellant’s non-recordal of her engagement in the 2010 visa application (carrying, in his Honour’s view, the implied representation that she was not engaged) constituted, by its terms, a rejection, denial or undermining of her claim that, at the time the Tribunal made its decision, she and her sponsor had a mutual commitment to a shared life to the exclusion of all others, and that they shared a genuine and continuing relationship. The primary judge held that it did not, with the consequence that this ground of review failed.

The appellant’s submissions

23    The single ground of appeal is whether the primary judge erred in rejecting this ground of review.

24    In her written submissions, the appellant submitted that, at the outset, it is necessary to clarify the precise aspect of the Tribunal’s decision that grounds her complaint. To this end, the appellant submitted that [18] of the Tribunal’s Decision Record is to be understood as containing the following findings:

(a)    There exists a standard form for the visitor visa sought by the appellant in 2010 which asks the person seeking the visa whether they are engaged.

(b)    The particular form used by the appellant and her response to any question as to whether she was engaged is unknown.

(c)    However, the appellant has stated to the Tribunal that she did not indicate, when seeking the visitor visa, that she was engaged.

(d)    Given the standard form, the appellant must have been asked on her particular form whether she was engaged and must not have responded affirmatively.

(e)    The appellant also did not otherwise mention the sponsor on her particular form.

(f)    The appellant, therefore, gave false and misleading information to the Department.

25    In oral submissions, counsel for the appellant more precisely identified the “information” which should have been put to the appellant in order for the Tribunal to have discharged its obligation under s 359A. The argument proceeded as follows. The Tribunal had the standard form and it had the appellant’s evidence that she did not indicate, when applying for the visitor visa in 2010, that she was engaged. The Tribunal did not have before it the 2010 visa application. However, armed with the two pieces of information it did have, it inferred that, in the 2010 visa application, the appellant did not answer, affirmatively, the question whether she was engaged, even though her evidence to the Tribunal was that she was engaged at the time she made the visa application. Thus, the “information” which the Tribunal should have put to the appellant is the inference it drew as to how the 2010 visa application had been completed by the appellant in this regard. Counsel submitted further that had the 2010 visa application been before the Tribunal, it (the Tribunal) would have been obliged to put that document to the appellant; that obligation could not be circumvented by the Tribunal drawing an inference as to the contents of the document.

26    In her written submissions, the appellant submitted that the primary judge erred in observing that the appellant’s representation that she was not engaged (at a time when she was) was not an integer of the applicant’s claims for the granting of a partner visa: see that part of [30] of the primary judge’s reasons, quoted at [21] above.

27    In developing this submission, the appellant argued that [17] – [18] of the Tribunal’s Decision Record reveals that the history of the relationship between the appellant and her sponsor, including their engagement, was relevant to the Tribunal’s assessment of the veracity of their current relationship. She submitted:

The existence of the engagement, and the Appellant’s representation that she was not engaged, cannot be excluded from significance simply because the Appellant and her sponsor are relying upon the relationship at a later point in time. Its history is as relevant to its assessment by the Tribunal as its present state.

28    In oral submissions, counsel for the appellant accepted that his contention that the Tribunal had made a finding that, in the 2010 visa application, the appellant had impliedly represented that she was not engaged, was a necessary aspect of the case on appeal.

29    The appellant submitted that, having erroneously identified the integers of her claim, the primary judge then misapplied the “rejection, denial or undermining” test.

30    The appellant accepted that there is a recognised distinction between, on the one hand, thought processes (such as the identification of inconsistency) or the making of a finding on credibility and, on the other, information attracting s 359A. She submitted, however, that, in the present case, the information in question did not go only to her credibility. Borrowing from Markovic J’s reasoning in SZVCB v Minister for Immigration and Border Protection [2017] FCA 479 (SZVCB) at [29], she submitted that, in her case, the representation that she was not engaged was the basis upon which the Tribunal “was concerned about the veracity of her claims, which in turn led to the Tribunal’s credibility finding”.

Consideration

31    The appellant’s submissions involve some significant recasting of the Tribunal’s reasoning and findings. It also involves some recasting of the primary judge’s reasons and the way in which the application for judicial review was argued before his Honour.

32    First, I do not accept the appellant’s formulation of the findings made by the Tribunal at [18] of its Decision Record, which I have set out at [24] above, particularly paras (b) and (d) thereof. These interpolations represent one possible version of the facts but, as I have said, various other possibilities are open. In particular, the Tribunal’s findings at [18] do not exclude the possibility that the Tribunal did have the 2010 visa application before it and, as I have said, produced it to the appellant. If the ground advanced below depended on the finding of particular facts concerning the conduct of the Tribunal hearing, then the appellant could have, and should have, adduced evidence in her case before the primary judge to support the facts she wishes to advance. Although the primary judge appears to have proceeded on the assumption that the relevant part of the 2010 visa application had not been put to the appellant, his Honour made no finding to that effect. It was not necessary for his Honour to do so given the basis on which he rejected the appellant’s case was that s 359A had not been complied with.

33    Secondly, in light of the preceding finding, I am not persuaded that the Tribunal necessarily proceeded on the basis of an inference it had drawn as to how the appellant completed the 2010 visa application. This is the only “information” which, on appeal, the appellant contends should have been put to her. For this reason alone, the appeal, as advanced, cannot succeed.

34    Thirdly, the submission I have recorded at [26] above does not accurately capture the observation that the primary judge, in fact, made at [30] of his reasons, quoted at [21] above. His Honour’s observation was directed to the circumstances claimed by the appellant and the sponsor in which they had agreed to get married, not the fact of their engagement as such. These are distinct notions. Further, it appears that the primary judge’s observation (that the claimed circumstances were not an integer of the appellant’s claim) reflects the effect of a submission which the appellant’s then counsel advanced below. It has not been suggested that his Honour has not accurately recorded the effect of the submission that was made.

35    Fourthly, as I have explained above, the Tribunal did not go so far as to find that the appellant had impliedly represented that she was not engaged at the time she made the 2010 visa application. It was the appellant’s failure to disclose her engagement and her failure to mention the sponsor in the 2010 visa application, and her willingness to act in the way she did in making the application (which included the appellant simply copying information from a prior visa application when her circumstances had changed) which suggested to the Tribunal, and gave rise to its concern, that the appellant was “not a person of credibility”.

36    Fifthly, on the hypothesis that the Tribunal did make a finding that, in the 2010 visa application, the appellant did impliedly represent that she was not engaged, the appellant’s submissions proceed on the footing that the Tribunal then took this implied representation to be the fact—namely, that the appellant was not engaged to the sponsor at that time—and used that fact to support its finding that, at the time of its decision, it was not satisfied that the appellant and the sponsor had a mutual commitment to a shared life to the exclusion of all others; that their relationship was genuine and continuing; or that they were in a spousal relationship.

37    However, the Tribunal did not find that the appellant and the sponsor were not engaged at the time the appellant made the 2010 visa application. To the contrary, the Tribunal’s credit finding at [18] of the Decision Record is premised on its acceptance that the appellant and the sponsor were engaged. Thus, the Tribunal said:

18    … The applicant’s failure to disclose her engagement and her failure to mention the sponsor in her visitor visa application suggest the applicant provided false or misleading information to the Department in order to obtain the visa. Her willingness to do so suggest the applicant is not a person of credibility and it is of considerable concern to the Tribunal.

38    The Tribunal’s acceptance that the appellant and the sponsor were engaged at the time the 2010 visa application was made is abundantly clear from other passages of the Tribunal’s Decision Record to which I have referred. Thus, at [10] of the Decision Record, the Tribunal said:

10    …The haste with which the decision was made [i.e., the decision to become engaged] suggests to the Tribunal that the relationship was arranged, either by the parties or their relatives, well before the sponsor travelled to Vietnam and the Tribunal does not accept their evidence that they formed the decision to enter the relationship after first meeting in person ten days after the sponsor travelled to Vietnam.

39    At [12] of the Decision Record, the Tribunal said:

12    … In the Tribunal’s view, such lack of interest in getting to know each other, and the very brief period within which the relationship developed and before the couple engaged, suggests they do not view the relationship as a genuine one and that the relationship is nothing more than an arrangement to enable the applicant to obtain the Australian visa.

40    Sixthly, I am not satisfied that the Tribunal’s findings at [18] of the Decision Record in relation to the manner in which the appellant conducted herself in making her visa application in 2010 was “information” for the purposes of s 359A of the Act. These findings went only to the appellant’s general credibility and did not constitute information that would be a rejection, denial or undermining of the appellant’s claims as to the nature of her relationship with the sponsor at the time of the Tribunal’s decision. The present case is distinguishable from SZVCB.

Conclusion and disposition

41    For these reasons, the appeal fails and must be dismissed. The primary judge did not err in the ultimate conclusion to which he came, although I have identified some errors in his Honour’s reasons. The appellant is to pay the Minister’s costs.

Associate:

Dated:    6 December 2019