Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1256

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal to be fixed by a registrar if not agreed.

3.    In respect of Exhibit 1, described as exhibit HRM-2 to the affidavit of H R Musgrove affirmed 29 October 2020, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), no person other than a party to the proceedings or a legal representative of a party or a registry officer, may inspect or copy the Exhibit, save with the lave of the Court or a judge first had and obtained.

4.    The Registrar refer a copy of the Appeal Book and other material read on the hearing of the appeal, including Exhibit 1 (leave being granted for this and incidental purposes to the Attorney-General for the Commonwealth, for such investigation as the Attorney-General may deem fit as to whether Mr Xuan Thong Nguyen has committed the offence of bigmany, contrary to s 94 of the Marriage Act 1961 (Cth).

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    This appeal has its origins in an application made by the appellant under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Partner Class BS (Subclass 801) visa, on 7 August 2012. A delegate of the ministerial predecessor in the administration of the Act to the present respondent Minister refused that application on 6 February 2018. The appellant then applied to the Administrative Appeals Tribunal (Tribunal) for the review on the merits of that refusal decision. On 18 July 2019, the Tribunal for reasons published that day decided to affirm the Minister’s delegate’s decision.

2    The appellant applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision. On 12 February 2021, that court dismissed with costs that judicial review application: see Nguyen v Minister for Immigration & Anor [2021] FCCA 212. The appellant has now appealed to this Court against that order of dismissal.

3    The Minister is the only active party respondent to the appeal. The Tribunal, as it did quite properly before the Federal Circuit Court, has adopted the stance of abiding the order of the court and not wishing to be heard save in respect of any issue going to costs.

4    There are three grounds of appeal. They are:

1.    The Federal Circuit Court (Court) erred in its approach to the consideration of whether the credibility finding of the second respondent (the Tribunal) was tainted by jurisdictional error.

Particulars

(a)    The Court at [94] criticised the appellant for taking issue with individual factual findings of the Tribunal “... in the hope that if one or two may be found lacking, then the whole of the Tribunal decision falls down”, rather than looking “at the evidence as a whole”.

(b)    The Court failed to appreciate that a review of the decision of the second respondent required a “case specific inquiry”, involving a detailed analysis of what it had decided.

(c)    In the circumstances, the Court erred by failing to find that the accumulation of errors in individual factual findings by the Tribunal undermined its credibility finding such as to amount to jurisdictional error.

2.    The Court, by its observations and comments at [96]-[107] and [113], did not engage with the grounds of judicial review pleaded by the appellant, but rather strayed into the merits of the application originally brought before the Tribunal.

3.    The Court, at [108]-[112] erred by finding that the Tribunal had not failed to comply with its obligation under s 359A of the Act to give the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review, with regard to information contained in files that it had in its possession relating to other persons.

[emphasis in original]

5    Ground 2 is really a subset of ground 1 in the sense that the lack of engagement with the grounds of review pleaded by the appellant is said to be productive of a failure to appreciate merit in the allegation of jurisdictional error in the Tribunal’s decision based on a reasoning process including in that regard credibility findings, which were either illogical, irrational or unreasonable. It is convenient therefore, first, to address ground 1 before considering the separate ground of appeal found in ground 3’s allegation of jurisdictional error grounded in alleged non-compliance with the obligation found in s 359A of the Act.

6    To give context to consideration of ground 1, it is, in my view, desirable to set out the particular basis upon which the Tribunal decided to affirm the decision not to grant the appellant the partner visa. As to that and materially, s 65(1)(a) of the Act provides that after considering a valid application for a visa, the Minister, if satisfied – and then s 65(1)(a)(ii) provides the other criteria for it prescribed by this Act or the regulations have been satisfied – is to grant the visa, or (b), if not so satisfied, is to refuse to grant the visa. Thus, the Tribunal, sitting in place of the Minister and the Minister’s delegates, was obliged to grant the visa if materially satisfied that the criteria for it had been satisfied and was obliged to refuse to grant the visa if not so satisfied.

7    The Tribunal’s refusal was based on an absence of satisfaction, the essence of which is to be found in the concluding paragraphs of the Tribunal’s reasons at [98] – [103], inclusive:

98.    As set out above, the Tribunal finds the applicant’s child’s father is not the sponsor but is likely to be Ba Hiep Vu. The Tribunal finds the applicant was in a relationship with Ba Hiep Vu and not with the sponsor. The Tribunal finds the sponsor was not in an exclusive relationship with the applicant but was in a relationship with Thi Thien Dieu Truong. This indicates that neither the applicant nor the sponsor had a commitment to a shared life with each other as husband and wife to the exclusion of all others.

99.    The Tribunal has considered all the circumstances of the claimed relationship both individually and cumulatively. As indicated above, the Tribunal finds the applicant has manipulated evidence to support the application. She has provided false information throughout the course of her claimed relationship to obtain an immigration outcome she desired.

100.    The Tribunal finds that the claimed relationship between the applicant and the sponsor has never been genuine and continuing and that they have never had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the applicant has ever been the spouse, as defined in s.5F of the Act, of the sponsoring partner.

101.    At the time of this decision, the applicant has acknowledged that she is not in a continuing relationship with the sponsor and the only basis of her meeting the time of decision criteria is by satisfying cl.801.221(6). As that requires that the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased, and as the Tribunal has concluded the applicant was never the spouse of the sponsoring partner, the applicant does not meet this criteria for the grant of the visa.

102.    The Tribunal finds the applicant does not meet the criteria in cl.801.221(6). No claims have been made that the applicant meets any of the alternate criteria.

103.    For the reasons above, the applicant does not satisfy the criteria for the grant of the visa and the decision to refuse the applicant the visa must be affirmed.

8    As can be seen, a critical criterion in respect of which the Tribunal was not satisfied, for reasons set out in the Tribunal’s reasons, was that the appellant had ever been a spouse as defined in s 5F of the Act of the sponsoring partner, Mr Xuen Thong Nguyen. Administrative decisions based on a state of satisfaction or an absence of satisfaction are not immune from judicial review: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at [127] – [136], per Gummow J. Thus, an administrative decision reached on the basis of satisfaction which, having regard to the reasons specified, is irrational or illogical or unreasonable may be quashed on judicial review for jurisdictional error.

9    That the satisfaction or absence of satisfaction was dependent upon credibility findings does not render the administrative decision immune from such review. The parties were at one, and rightly so, that the relevant principles in relation to the judicial review of a satisfaction based administrative decision dependent upon credibility findings were as discussed and stated by the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, at [36], and following. As to that discussion, particular reference might be made to the Full Court’s citation, at [41], with approval of observations made on this subject by Flick J in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (SZSHV), at [31]. In turn, Flick J’s judgment draws upon observations made by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

10    One of the cases cited in Flick J’s observations in SZSHV is an earlier judgment of mine in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 (SZLGP) where, at 126, I had observed that “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. In that particular observation is to be found the essence of where, it is submitted, that the learned Federal Circuit Court judge fell into error by failing to appreciate that just this type of jurisdictional error was present in the Tribunal’s decision having regard to its reasons.

11    As to the Tribunal’s reasons, there is no doubt that an adverse view as to the appellant’s credibility was formed by the Tribunal: see [50]. The Tribunal stated, at [51]:

The most significant issue of credibility concerned the claimed relationship between the applicant and Ba Hiep Vu. The applicant claimed that she did not know who Ba Hiep Vu was and claimed that she had no relationship with him or knowledge of his whereabouts or any other facts about him. The Tribunal does not accept this.

12    The Tribunal then stated, at [52]:

There is substantial evidence which would indicate the applicant knows and has been in a relationship with Ba Hiep Vu. This evidence would also indicate that Ba Hiep Vu is the father of the applicant’s child.

13    Against this background, the Tribunal then set out, at [53], particular factors which grounded the finding as to absence of credibility.

14    The Tribunal also considered – and this is relevant to the third ground of appeal – that those factors had been put to the appellant. The Tribunal stated at [53]:

53.    The evidence, which was put to the applicant, to support this finding includes the following:

•    The applicant and Ba Hiep Vu attended Holmes College together in 2012;

•    The applicant and Ba Hiep Vu travelled together to Vietnam on the same flight on 6 November 2011, both going through customs clearance at 9:40;

•    The applicant and Ba Hiep Vu returned together to Australia from Vietnam on 26 November 2011 on the same flight;

•    The evidence of the applicant was that she may have travelled in the seat next to Ba Hiep Vu, both travelling to Vietnam and on their return flight to Australia;

•    The applicant and Ba Hiep Vu travelled together to Vietnam on the same flight on 11 April 2012, both going through customs clearance at 9:02;

•    The applicant and Ba Hiep Vu returned together to Australia from Vietnam on 26 April 2012 on the same flight;

•    The evidence of the applicant was that she may have travelled in the seat next to Ba Hiep Vu both travelling to Vietnam and on their return flight to Australia;

•    The applicant’s child was conceived in the period between the applicant’s first return visit to Vietnam with Ba Hiep Vu in November 2011 and their second return visit to Vietnam together in April 2012; and

•    The applicant’s child was given the name Henry Vu Nguyen, giving the surname of the sponsor as she was claiming it was his child, but giving the second name ‘Vu’ being the family name of Ba Hiep Vu.

15    It was no part of the original jurisdiction exercised by the Federal Circuit Court to reach any conclusions as to the appellant’s credibility, only whether the Tribunal’s decision and the absence of satisfaction, grounded as it was materially on a conclusion as to absence of credibility, was attended with jurisdictional error. It likewise follows that, in the exercise of appellate jurisdiction, it is no part of my function to reach any such conclusions, only to decide whether error attended the conclusion of the Federal Circuit Court that no jurisdictional error was present in the Tribunal’s decision.

16    It is common ground that the first of the factors to which the Tribunal refers, at [53], does contain a factual error. There was material before the Tribunal reasonably capable of supporting a finding that the appellant and Ba Hiep Vu had attended Holmes College over an overlapping period in 2009. The error was in ascribing the year of overlapping attendance as 2012. The submission made on behalf of the appellant was that this error could not be dismissed as immaterial as it formed part of an intermingled chain of reasoning which informed the finding as to absence of credibility. It was further submitted that the error as to the year had a particular adverse significance for the appellant in that it was much more proximate to and indeed the same year as the year in which a child said to be that of the appellant and Mr Nguyen was born.

17    It is not possible to tell whether, as the Minister suggested in submissions it might have been, this error was merely one of transcription or typographic. It does not look to have that character in the sense that the year specified is an important year in terms of the Tribunal’s task of assessing whether there was the claimed relationship between the appellant and Mr Nguyen as sponsor. That said, even if the year is wrong, the fact of coincidence of attendance at Holmes College was a factor which, taken in conjunction with other factors, was reasonably capable of supporting an adverse credibility finding.

18    Further, those other factors in themselves were most certainly reasonably capable of supporting such a finding. There were thus other bases which did not depend upon coincidence of attendance in a given year which by themselves were capable of supporting a finding as to absence of credibility. In these circumstances, the error as to the year was of no moment. It is clear enough from the transcript of the hearing before the Tribunal that the proposition and potential relevance of coincidence of attendance was put to the appellant by the Tribunal.

19    In so doing, the error found in the first dot point under [53] is not present. It is the fact of coincident attendance at Holmes College studying similar courses which is put. As can be seen from the other dot points under [53], coincidence of travel, both to and from Australia on two occasions including entry or, as the case may be, exit from Australia at identical or near identical times was an influential factor. So too was a coincidence of name, Vu, as between the appellant’s child and the alleged true father. In my view, there was no error on the part of the Federal Circuit Court in failing to discern jurisdictional error in the Tribunal’s credibility finding.

20    The case is quite different from, for example, SZLGP. The reasoning process in respect of credibility had multiple pathways. Even accepting, as I do, that intermingling or cumulative consideration of a variety of factors, perhaps, neutral in themselves, might inform a particular credibility finding, the error as to year of attendance at Holmes College does not, in my view, amount to a critical error in a reasoning process which is otherwise eminently supportable. Separate to that, if there be an error in the Tribunal’s finding as to credibility based on that one particular factual error, the error in the credibility finding, which in turn formed the satisfaction absence, was not, in my view, jurisdictional. It was not material.

21    The settled position in the High Court is that errors are only jurisdictional if they are material: see, recently, MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (MZAPC), at [2]:

[2]    Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

[footnote reference omitted]

22    It might also be noted in relation to MZAPC that, at [3], in the joint judgment their Honours observed that the explanation in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) is “sound in principle and consistent with precedent. SZMTA ought not to be revisited”. The path by which the learned Federal Circuit Court judge reached a conclusion as to absence of jurisdictional error is set out in [102] and [103]:

102.    The Court is of a view that the factual conclusions made by the Tribunal at paragraph 53 of its decision were open to it, based on the evidence on a cumulative basis. None of the conclusions meet the stringent test for illogicality or irrationality such as to constitute legal unreasonableness. The Court accepts the submissions of the first respondent set out above in this regard. None of the individual dot points in paragraph 53 of the Tribunal decision of themselves, is critical to the overall finding of the Tribunal that the applicant was not in a relationship with Mr Nguyen.

103.    The findings at dot point 8 of paragraph 53 of the Tribunal decision, do nothing more than show the possibility that the applicant and Mr Vu were in a relationship. The Tribunal did not conclude based on this information that Mr Vu was the father of the child.

23    Read in the context of the Court’s reasons as a whole and having regard to the way in which the grounds of review were cast, I do not see that the learned Federal Circuit Court judge approached the disposal of those grounds on the basis of his Honour’s reaching his own view as to merits. All that his Honour has done is to reach a conclusion that the factual conclusions specified by the Tribunal, at [53], of its reasons were open to it on the evidence before it on a cumulative basis. The learned Federal Circuit Court judge is not, in his Honour’s reference to “on a cumulative basis”, to be taken to reach in his own conclusion on a cumulative basis as opposed to appreciating, with respect, correctly, that it was on such a basis that the Tribunal reached such a finding as to credibility.

24    There was indeed, as was submitted on behalf of the appellant, a cumulative result from considering a number of factors, but such a process of reasoning is permissible. And as I have already indicated, the error found in the first dot point as to 2012 rather than 2009 could not be said to be material in that process of cumulative reasoning. The Tribunal’s absence of satisfaction as to the claimed relationship between the appellant and Mr Nguyen was not the only ground in the factors set out in [53]. As its reasons disclose and as required by particular regulatory criteria, the Tribunal addressed a number of other factors which can be touchstones as to the existence or otherwise of a relationship with a sponsor.

25    As to these, the Tribunal took into account but gave little weight in themselves to particular anonymous disclosures made by third parties or perhaps the one third party to the Minister’s department. Instead, the Tribunal looked to and compared particular periods of claimed genuine relationship as between the appellant’s visa application in respect of which Mr Nguyen was sponsor and another visa application in respect of another person in respect of which Mr Nguyen was also sponsor. The Tribunal looked to the particular support apparently given in material submitted in conjunction with the visa applications to the genuineness of each such relationship claimed.

26    The conclusion of the learned Federal Circuit Court judge was that there had not been, first, any improper use of what his Honour termed the “dob ins,” only that, at [105], the conclusions of the Tribunal as to the similarities of the evidence presented were “unremarkable”. It was put on behalf of the appellant that the similarities so-called did not survive a detailed scrutiny of the respective supporting materials and a comparison and a contrasting between the two. This however, with respect, is to solicit a form of merits review. At a level of more general abstraction, it was – and this appears to have been the approach of the Tribunal – quite a permissible form of rational, logical and reasonable reasoning to look to applications apparently supported by mutually inconsistent relationships promoted for visa purposes with Mr Nguyen being the sponsor in each.

27    In short, then, as to ground 1, the Tribunal’s absence of administrative satisfaction on the bases specified in the Tribunal’s reasons was quite capable of supporting the conclusion reached in the Federal Circuit Court that it was not attended with irrationality or illogicality or that it was unreasonable. The adjective adopted by the learned Federal Circuit Court judge in respect of the Tribunal’s reasoning as to absence of satisfaction “unremarkable” was, with respect, apt.

28    That then leaves the quite separate question as to whether jurisdictional error is to be found in a failure by the Tribunal to comply with s 359A of the Act.

29    One way of so doing is to give particulars orally as required by s 359AA of the Act. The learned Federal Circuit Court judge concluded that the statutory obligation had been met. Once again, and with respect correctly, there is no difference between the parties as to the relevant principle, only whether the obligation had or had not, in accordance with that principle, been complied with. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505, at 23, Flick J observed of an analogue of s 359A, namely, s 424A, as follows:

23    There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to “comment … or respond …” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.

30    Compliance or otherwise with the obligation found in s 359A of the Act is inherently not just case but context specific in terms of the information which must be put in order to provide clear particulars productive of a meaningful opportunity of a part of a visa applicant to respond. The obligation is a form of ensuring that procedural fairness is observed in respect of the making of a decision to which the section applies. But the obligation is that stated in the text of the section itself, not by reference to common law principles in respect of procedural fairness. The level of abstraction necessary and the context necessary in order to afford clear particulars will depend upon the information and the relevance it might have in the circumstances of a particular case.

31    In this particular case, it was put that question 100 evidenced non-compliance with the statutory obligation. It is necessary before setting out question 100 first to give context to that question by the general statement which the Tribunal made to the appellant in question 98:

Q98    Okay. I’m going to be putting to you now information to which will be reasons or a part of the reason for affirming the decision under review. I’ll tell you what the information is and explain to you why it’s relevant. I’ll then given you an opportunity to comment on or respond to that information. If you need more time to comment on or respond to the information you can request an adjournment. I’ll then consider whether granting the adjournment is appropriate. I’ve got the PRISMS records for your – for Ba Hiep Vu, that’s PRISMS, P-R-I-S-M-S. Just say Prisms.

32    Having done this, the Tribunal responded to a question as to what was ‘PRISMS’ as part of the question posed at question 100. The Tribunal stated:

Q100    I’ve got the student records for Ba Hiep Vu. It shows where he has studied in Australia. These records show that he was studying English and also Business Administration at Holmes Institute at the same time that you were studying at Holmes College. This is relevant because it would indicated that you’re more than likely to have met him because you were studying at the same time, same college, doing similar courses. This is relevant because it would indicate that you have met him and you would be aware of him. It would indicate that it would undermine the credibility of your claims that you do not know anything about him and would support a finding that you had a relationship with him. Do you want to comment on or respond to that information?

33    The following exchange then occurred:

A100    (INT) So what you are saying is that it was claimed that I was in the same college, same school as that person at the time?

Q101    Yes

A    (INT) I did not know that person because the fact is that, you know, when I study there I didn’t know everyone who was studying at the same time there. And the class at the time consist of, you know, between 10 to 20 students in the class and would use nickname for everyone to remember someone else more easily because the student from various different countries.

Q102    Well, I’m pretty sure that he’s from Vietnam so I think you’d be more likely to know somebody who was from Vietnam.

A    (INT) But just by the name I will not be able to recognise that name because I myself, you know, I don’t think that maybe classmate would know about my real name because I just like an English name in the class so that everyone can easily recognise and use it including the lady teacher.

Q103    So you’re saying maybe he used a different name?

A    (INT) Yes, that’s right and especially, you know, when I asked by the immigration department it was quite sometime and after I had been to the class so, you know, the fact was that I didn’t know the person by that name and the possibility of that is because he’s using another name, an English name here he adopted.

34    Contrary to the submission made on behalf of the appellant, it was not, in my view, necessary for the Tribunal to descend into any greater particularity than that found in question 100, read in context in respect of coincidence of attendance as between the appellant and Ba Hiep Vu at the Holmes Institute. It was not, in my view, necessary to highlight that Mr Vu’s length of attendance extended beyond that of the appellant, for example. What the Tribunal has done, in my view, is squarely to put to the appellant that the coincidence of attendance would be a factor which could impact upon her credibility in terms of her having said she knew nothing of Mr Ba Hiep Vu.

35    Other questions which were said to evidence non-compliance with the statutory obligation were question 135, 143 and 144. Once again, these questions, in my view, contain sufficient particularity either as to the fatherhood of the appellant’s child, knowledge of the other sponsored person, Thi Thien Dieu Truong, or any marriage as between Mr Nguyen and Ms Truong.

36    I also understood there to be an allegation as to an absence of particularity in relation to movement records in and out of Australia and conclusions that might be drawn. The passages concerned in the Tribunal hearing commence at question 104 and run through to the answer to question 113:

Q104    Okay. I’ve got the movement records of yours and of Hiep Vu. They show that you travelled together, leaving Australia on the 6th of November, 2011 and returned together on the 26th of November, 2011. This is relevant because as you were travelling together it indicates that you were in a relationship with each other and undermines the credibility of the claims that you do not know this person at all. Do you want to comment on or respond to that information?

A    (INT) On that date I did go to Vietnam and I was using – travelling Vietnam ….. (01:13:46) and with Vietnam ….. (01:13:47) they are mainly Vietnamese passengers and I don’t know whether the person that you refer to was on the plane or not.

Q105    So you’re saying it’s just a coincidence that he happened to travel with you on the same flight to Vietnam and just happened to travel with you on the same flight back to Australia?

A    (INT) Yes, I would say so and there’s possibility that, you know, I saw the person on the flight back there and on the way back, you know, I might saw him – I might see him again but I didn’t speak to him or any many whatsoever.

Q106    So you weren’t sitting next to him on the aeroplane?

A    (INT) No, I can’t recall and I absolutely cannot recall who I was sitting with. When I check-in they just assign me a seat and now, you know, I can’t remember, I can’t recall who was sitting on my two sides.

Q107    So you can’t recall who you were sitting with on your flight to Vietnam and back again?

A    (INT) Well, it would just totally by chance that we sat together next to each other on the way there and on the way to Vietnam I knew nothing about him and on the way back it was by chance that he was sitting next to me. Possibly, you know, I could have recognised but that was the extent of anything that happened between him and me.

Q108    So you’re telling me that it was totally by chance that you were sitting together both flying to Vietnam and coming back?

A    (INT) Yes, that was a possibility because I cannot recall who the person sitting next to me during those flights was or were.

Q109    Because the other thing is that you go through Customs going out at 9.40 and 2 seconds. He goes through Customs at 9.40 and 2 seconds. Now, if you’re going through Customs at the same time that indicates to me that you’re travelling together. Do you want to say anything about that?

A    (INT) You mean the Custom check out, is it on the return flight or when I check in to fly to Vietnam?

Q110    When you go through to international departures hall and you go through that queue and you wander around like that and eventually come to a Customs officer and he takes your passport. So you hand over your passport, you hand over your departure form and you have over your ticket. That information is recorded. So I know that both you, Ba Hiep Vu, went through Customs at exactly the same time.

A    (INT) I just had to queue up in the queue to check in. I am not aware of everything else. I just lined up and just to try to check in, that’s all.

Q111    So it’s just coincidence that you just happened to go through Customs at exactly the same time to catch exactly the same flight and then came back into Australia at exactly the same flight and time?

A    (INT) Could be because I didn’t pay any attention to anything else.

Q112    Okay. Because again your movements records show that you travelled overseas on the 11th of April, 2012, returning on the 26th of April, 2012. On the same flight as you both going to Vietnam and returning to Vietnam was Ba Hiep Vu and surprise, surprise, going through Customs you both went through Customs at 9.02. So this again undermines your credibility of the answers that you’re giving to me today and indicates that you were in a relationship with Mr Vu and that you were never in a genuine relationship with your sponsor. Do you want to comment on or respond to that information?

A    (INT) Yes. The situation is that, you know, I don’t know about all the facts that you just raise. I got to say that, you know, it is just totally by chance. I do not know any – that person by that name when the name was shown to me. Had it been photograph of a person I may have recognised the face or the person but as for the relationship between myself and my husband it was genuine husband and wife relationship. Sure, the period since I knew him until the time that he left me we were always together. Even in August 2014 he was still running around trying to take care of all the paperwork for my application to apply for me to get a permanent residency in Australia.

Q113    So were you flying – sitting together again back to Vietnam and coming back, so you’re flying together, the same flights sitting next to each other in the aeroplane with Mr Vu?

A    (INT)    The name Ba Hiep Vu is a very strange name to me. I do not recognise that name. If you can show me the photo of that person then I may be to recognise or not recognise. I will be able to say whether I recognise the face or not.

37    It is desirable to set out this exchange in full for two reasons. The first is to demonstrate that there was no error to be found as the learned Federal Circuit Court did not find an absence of clear particulars being put to the appellant in relation to movements in and out of Australia and conclusions that might be drawn in respect of an association between the appellant and Mr Vu. The second is that one of the Tribunal’s factors identified in [53] of its reasons is that the appellant and Mr Vu may have sat together on the aircraft. The Tribunal’s finding rises no higher than a possibility, and that, in my view, finds a reasonable foundation in the answers which the appellant gave in the exchange which I have quoted.

38    Looking at the transcript of the questions asked of the appellant as a whole by the Tribunal, I see no basis whatsoever for any conclusion, be it by reference to the particular questions I have cited were sponsored to the way oral argument was developed or otherwise for a conclusion that there was an absence of compliance by the Tribunal with s 359A of the Act. The conclusion reached by the learned Federal Circuit Court judge was the same even if, with respect, more abbreviated: see [112].

39    For these reasons, then, there is no merit in any of the grounds of appeal. The appeal must be dismissed.

40    It may be, having regard to the material before the Tribunal, that there is a case which warrants investigation in respect of whether there was an offence against s 94 of the Marriage Act 1961 (Cth) committed by Mr Nguyen in relation to the contracting of two marriages – or in relation to the contracting of a further marriage whilst still married to the appellant. Whether or not that is so is not clear from the material and certainly not a subject in respect of which it would be in any way appropriate to reach any conclusion other than an interrogative note as sounded by the material such that the registrar should be directed to refer the papers to the Attorney-General for such investigation if any in respect of whether such offence has been committed as she deems fit.

Associate:    

Dated:    18 October 2021