Khu v Minister for Immigration & Anor [2016] FCCA 3162 (8 December 2016)

Last Updated: 9 December 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHU v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3162

Catchwords: MIGRATION – Prospective Marriage (Temporary) (Class TO, Subclass 300) visa – whether parties were spouses for the purposes of s.5F of the Act – whether tribunal misapplied test when it considered the applicant’s claim of a pooling of financial resources – whether the tribunal decided the application on the basis of a new issue not notified to the applicant – no jurisdictional error established.

Legislation: Migration Act 1958 (Cth), ss.5F, 360 Migration Regulations 1994 (Cth), cls. 300.216, 300.221, regs. 1.15A(3), 1.15A(4)

Cases cited: Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

THI NGON KHU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1753 of 2015

Judgment of:

Judge Jarrett

Hearing date:

21 September 2016

Date of Last Submission:

21 September 2016

Delivered at:

Brisbane

Delivered on:

8 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr Solomon-Bridge

Solicitors for the Applicant:

Victoria Immigration Lawyers

Counsel for the First Respondent:

Mr Smyth

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

(1) The application filed on 29 July, 2015 be dismissed.
(2) The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE

MLG 1753 of 2015

THI NGON KHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, Ms Khu, seeks judicial review of a decision of a migration review tribunal that affirmed an earlier decision of a delegate of the first respondent to refuse each of Mr Cong Phuoc Le and his dependent children Prospective Marriage (Temporary) (Class TO, Subclass 300) visas for which the applicant had sponsored Mr Le.
2. On 13 March, 2014 a delegate of the first respondent refused Mr Le’s application for the visa and Ms Khu’s application to sponsor him for the purposes of that visa on the basis that she was not satisfied that Mr Le and Ms Khu genuinely intended to live together as spouses. Ms Khu sought review of the delegate’s decision by a migration review tribunal.
3. The issue for the tribunal on the review was whether the tribunal was satisfied that Ms Khu and Mr Le were spouses for the purposes of the Migration Regulations 1994 (Cth). On 27 June, 2015 the tribunal affirmed the decision not to grant the visas. It was not satisfied that Mr Le and Ms Khu met the requirements of the definition of spouses for the purposes of the Regulations.
4. The first respondent opposes the present application. The second respondent enters a submitting appearance. Both parties have filed written submissions.

Statutory Framework

5. Mr Le made his application for the visa on 5 June, 2013. At that time, cl.300.216 of Schedule 2 to the Migration Regulations provided a time of application criterion to the effect that:
   • The Minister is satisfied that the parties genuinely intend to live together as spouses.
6. Clause 300.221 of Schedule 2 to the Migration Regulations provided a time of decision criterion, namely:
   • The applicant continues to satisfy the criteria in clause 300.211 and clauses 300.214 to 300.216.
7. Spouse is defined in s.5F of the Migration Act 1958 (Cth) as follows:
   • 5F Spouse
   • (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:

• (i) live together; or
• (ii) do not live separately and apart on a permanent basis.

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
8. Regulation 1.15A of the Migration Regulations sets out arrangements for the purpose of determining whether one or more of the conditions in s.5F(2)(a), (b), (c) and (d) of the Act exist. Subregulation 1.15A(4) provides, in effect, that in considering an application for a (Class TO) visa the Minister may consider any of the circumstances mentioned in subregulation (3). Subregulation (3) provides:
(3) The matters for subregulation (2) are:

• (a) the financial aspects of the relationship, including:
• (i) any joint ownership of real estate or other major assets; and
• (ii) any joint liabilities; and
• (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
• (iv) whether one person in the relationship owes any legal obligation in respect of the other; and
• (v) the basis of any sharing of day-to-day household expenses; and

(b) the nature of the household, including:

• (i) any joint responsibility for the care and support of children; and
• (ii) any living arrangements of the persons; and
• (iii) any sharing of the responsibility for housework; and

(c) the social aspects of the relationship, including:

• (i) whether the persons represent themselves to other people as being married to each other; and
• (ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
• (iii) any basis on which the persons plan and undertake joint social activities; and

(d) the nature of the persons’ commitment to each other, including:

• (i) the duration of the relationship; and
• (ii) the length of time during which the persons have lived together; and
• (iii) the degree of companionship and emotional support that the persons draw from each other; and
• (iv) whether the persons see the relationship as a long-term one.

9. The tribunal was not satisfied that at the time of the tribunal’s decision Mr Le and Ms Khu genuinely intended to live together in a relationship in which there was a mutual commitment to a shared life as husband and wife to the exclusion of all others. The tribunal concluded that Ms Khu and Mr Le did not genuinely intend to live together as spouses and therefore Mr Le did not satisfy that time of decision criterion. Therefore cl.300.221 was not satisfied and Mr Le was not entitled to the visa.

The grounds of review

10. Ms Khu pursues three grounds of review. The first ground is in the following terms:
    • The Second Respondent asked itself whether the sponsor’s remittances to the applicant were for a particular purpose viz. the applicant’s children’s education or school fees. It should have asked itself whether the remittances were probative of the pooling of financial resources (for whatever purpose).
11. Ms Khu argues that the tribunal asked itself the wrong question when it considered the question of Ms Khu and Mr Le pooling their finances. The pooling of finances between Ms Khu and Mr Le was a relevant consideration for the tribunal: reg. 1.15A(3)(a)(iii) of the regulations. The tribunal accepted that Ms Khu had remitted $27,800 to Mr Le between May, 2012 and the hearing in February, 2015. It was Ms Khu’s case that the money was intended for Mr Le’s daughters’ education. It was suggested that the funds were used to pay school fees. The tribunal, however, did not accept that argument and considered that there was no evidence that demonstrated that the remitted funds were used to meet Mr Le’s daughters’ education costs. The tribunal drew an inference in respect of one of the amounts remitted to Mr Le by Ms Khu that it was used for Christmas celebrations given the circumstances in which the remittance occurred.
12. Ms Khu argues that whilst the tribunal was not satisfied about the purpose for which the funds were remitted to Mr Le, the fact that the tribunal accepted that the remittances had occurred constituted objective evidence of significant financial pooling between Ms Khu and Mr Le. As Ms Khu argues:
    • That is to say, even if Ms Khu’s representative were to be disbelieved on the purpose for the remittances, there was still uncontroverted (and, indeed, accepted) evidence of financial pooling which was probative of the financial aspects of the relationship and, thus, probative of the evidence of a genuine intention to live together as spouses.
13. Ms Khu argues that the tribunal asked itself the wrong question or addressed itself to the wrong issue when it considered the remittances made by Ms Khu to Mr Le. The applicant argues that the tribunal was more concerned with the purposes for which the remittances were made rather than with the fact that the remittances were made at all. As Ms Khu argues: “the tribunal should have rather asked itself whether the significant remittances were probative of the pooling of financial resources and, if so, whether that was probative of there being a genuine intention to live as spouses”. As Ms Khu points out, the tribunal made no findings that the remittances were made simply to strengthen Mr Le’s visa application.
14. The first respondent contends that Ms Khu’s approach to this ground of review does not properly appreciate the way in which the tribunal reasoned through this aspect of her evidence. The first respondent contends that having regard to the way in which Ms Khu, through her representative, put her case with respect to the remittances and having regard to the tribunal’s reasons, it was clear that the tribunal asked itself the right question. As the first respondent points out, in his submission letter dated 16 January, 2015 Ms Khu’s representatives said:
    • The collection of money transfer receipts from Sponsor to Applicant provide evidence of significant financial pooling. The purpose of such a significant amount of transfers is the commitment of the Sponsor to the Applicant’s two daughters’ education.
    • The Applicant is a deep sea fisherman and as such is a low income earner in his own country. Since meeting one another the Sponsor has developed a close bond with his two daughters... The Sponsor has volunteered to provide funds to support their education and continues to do so at the time of writing.
    • ... I ask that you give due consideration of the numerous subsequent transfers of money by the Sponsor to the Applicant and the explanation of the reason for the transfers as being one of a demonstration of commitment to the Sponsor’s daughters, [with] both of whom she has developed close bonds.”
15. In paragraphs 12 to 15 of the tribunal’s reasons, the tribunal said:
    • 12. The Tribunal notes that the sponsor has remitted a significant amount of money to the visa applicant. Based on the money remittances before the Tribunal, the sponsor has sent the applicant $18,200 between May and December 2012, $4200 in 2013 and $5400 in 2014. Since meeting the applicant, the evidence supports that the sponsor has remitted $27,800 to the applicant.
    • 13. The sponsor gave evidence that she works in a smallgoods factory on the production line. Her job is to weigh the product. She said that she is a casual employee but does sometimes work 40 hours per week. The representative's submission dated 16 January 2015 asks the Tribunal to give due consideration to the significant financial contributions made by the sponsor to the applicant. He says that these money transfers "provide evidence of a significant financial pooling". He also said that a significant amount of the transfers are for the applicant's two daughter's education, and these remittances demonstrate his commitment to their education.
    • 14. The Tribunal is not persuaded by this submission. There are no documents regarding the children's education or school fees that have been provided to the Tribunal. Almost 40% of the total remittances sent to the applicant in 2012 was sent in one transaction of $7000 which occurred on 23 December 2012. There is no evidence to establish that such a large amount sent on a Sunday two days before Christmas was related to the children's education. The Tribunal does not accept that it was.
    • 15. The Tribunal notes the sponsor's evidence that she sent money to the visa applicant to "show love and support". She said she regards the children as her own and also wants to show her own commitment to the visa applicant. Given the Tribunal's concerns below and noting that the sponsor is only casually employed as a factory worker, the Tribunal does not accept this evidence, and on the evidence before the Tribunal, the Tribunal considers that the financial aspects of the relationship are not a strong indicator of the claimed intention.
16. Ms Khu did not suggest to the tribunal that irrespective of the purpose for which the remittances were made to Mr Le, the fact of the remittances alone was something that the tribunal ought to have seen as supportive of a finding that the parties had pooled their finances in the relevant sense. As the first respondent submits, what was put to the tribunal was an argument that Ms Khu’s financial support of Mr Le’s daughters’ education demonstrated financial pooling. It was open to the tribunal to reject that account of the purpose of the remittances.
17. I accept the first respondent’s submission that the remittances do not demonstrate anything other than that there was a flow of money from Ms Khu to Mr Le. The remittances, without more, do not demonstrate pooling of the type contemplated by reg.1.15A(3)(iii). Whether resources have been pooled for the purposes of the relevant regulation must necessarily be a function of the purpose for which the remittances were made and received. Ms Khu’s case was that the remittances were made for a particular purpose. The tribunal rejected that purpose. In the absence of any other evidence as to the purpose of the remittances, the tribunal was entitled to take the course that it did.
18. In my view, the purpose for which the funds were transferred to Mr Le was inextricably linked to whether the transfer of funds might be said to constitute a pooling of funds between Ms Khu and Mr Le. The approach taken by the tribunal does not reveal that the tribunal asked itself the wrong question or misunderstood the test to be applied. Whilst the tribunal was cognisant that there had been transfers of funds from the visa applicant to her sponsor it was not satisfied that the purpose of those transfers was as Ms Khu had claimed. In those circumstances it was open to the tribunal to find as it did.
19. This ground of review does not reveal any jurisdictional error on the part of the tribunal.

Ground 1(b)

20. This ground is in the following terms:
    • The Second Respondent criticised Ms Khu at [14], [16], [17], and [24] of its reasons for providing no independent evidence (or no documentary evidence) to support or corroborate certain claims which had been advanced. The applicant could not reasonably have been expected to anticipate that criticism and so the Tribunal was obliged to put Ms Khu on notice that it was considering rejecting Ms Khu’s claims on that basis.
21. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 the High Court made it clear that the task of the tribunal was to conduct a review of the visa application that had been rejected by a delegate of the first respondent. In conducting that review, the High Court pointed out that an applicant was entitled to assume that the issues that were dispositive before the first respondent’s delegate would be the issues reviewed by the relevant tribunal. If the tribunal here affirmed the decision under review on an issue which had not been dispositive before the delegate without warning to Ms Khu, there may be a resulting jurisdictional error.
22. By this ground, Ms Khu suggests that the tribunal affirmed the decision of the delegate on an issue which was not dispositive before the delegate. The complaint is that the tribunal never raised with Ms Khu (and by inference her representative) that there was a lack of corroborating evidence in relation to certain aspects of her claims. Ms Khu submits:
    • Critically, the tribunal never raised with Ms Khu the prospect of the lack of corroborating evidence as reasons for arriving at its consequent adverse conclusions. It is submitted that, in light of the Delegate’s decision in the course of the tribunal hearing, Ms Khu could not reasonably anticipated that the tribunal would reject those aspects of her claims for reason of a lack of corroborative material.
23. However, in my view, the tribunal did not embark upon issues that were not considered dispositive by the delegate. The issue before the delegate and before the tribunal was the same. The issue that concerned the delegate was satisfaction of cl.300.216 in Schedule 2 to the Regulations. That required the delegate to examine whether Ms Khu and Mr Le intended to live together as spouses. The delegate considered the matters to which attention was directed by s.5F of the Act and reg.1.15A(3) of the Regulations. Throughout the delegate’s determination, there is an analysis of the claims made by Mr Le and Ms Khu and reference to a lack of evidence supporting their claims: see for example paragraphs 13, 14 and 16 of the delegate’s decision record.
24. The same issue was considered by the tribunal. There were no additional issues considered by the tribunal and considered dispositive by it. It was for Ms Khu to satisfy the tribunal of the matters that she relied upon. The need for evidence, other than her own, to support what she claimed, was readily apparent from the delegate’s decision record.
25. In submissions before me counsel for Ms Ku gave a number of examples of the tribunal rejecting her claims because of a lack of corroborating evidence. There were four that were singled out for particular attention. The first appears at [14] of the tribunals reasons:
    • There is no evidence to establish that such a large amount sent on a Sunday two days before Christmas was related to the children’s education.
26. The next appears at [16] of the tribunal’s reasons:
    • There is no evidence before the tribunal in the form of hotel receipts or other documentary evidence to support the parties’ claims that they stayed together during these two trips.
27. The next matter appears in [17] of the tribunals reasons:
    • There is no evidence before the tribunal of any hotel stays, or that the sponsor has declared her temporary place of residence at an address where the visa applicant resides.
28. The final example appears in [24] of the tribunals reasons:
    • There is however no evidence before the tribunal to support the claim that they spent time together in 2012 where it is claimed that their relationship developed.”
29. In my view, there is no substance to Ms Khu’s complaints. In effect, she seeks to cavil with the reasoning process engaged in by the tribunal. It was the tribunal’s task to assess the evidence placed before it by Ms Khu. It was required to reach a conclusion about the claims made by Ms Khu. As part of that process, the tribunal was required to analyse the evidence placed before it by Ms Khu. The tribunal is not required to disclose its reasoning process to Ms Khu before it delivers its reasons for decision. The analytical task engaged by the tribunal when assessing the evidence and the strengths of her claims is not something that the tribunal is required to disclose to Ms Khu.
30. In my view, the first respondent correctly argues that rather than the tribunal relying upon “evidence of absence” (as Ms Khu put in argument) the tribunal was pointing to gaps in the evidence as part of its reasoning process when determining whether it was satisfied of Ms Khu’s claims. I accept the first respondent’s submissions that the tribunal was not imposing a requirement upon Ms Khu to provide objective corroborative evidence in respect of each claim that she made. But the absence of corroboration was something that the tribunal was entitled to take into account.
31. The tribunal did not arrive at any of its conclusions in a way in which was procedurally unfair and in breach of s.360 of the Migration Act. Nor did the tribunal ask itself a wrong question. It did not ask itself whether the claims in evidence offered by Ms Khu had been corroborated but rather, it considered the question of corroboration in the process of assessing Ms Khu’s claims and determining whether it could reach the requisite standard of satisfaction required by the Act.
32. This ground reveals no jurisdictional error.

Ground 2

33. This ground suggests that the tribunal fell into error because it decided the review on an issue about which it had not given Ms Khu notice. That evidence was said to be the absence of “new” evidence supporting Ms Khu and Mr Le’s claim to have known each other and to have been in a relationship since 2012.
34. The ground is in the following terms:
    • The delegate of the First Respondent stated that the witness statements of third parties should be given limited weight in assessing the nature and genuineness of the relationship, as the accounts from the sponsor and applicant firsthand had greater bearing on that issue. The applicant was therefore entitled to assume that no purpose would be served by his providing further witness statements from third parties to the Tribunal and/or that his not providing such statements would not be an issue that would arise in relation to the review. However, the Tribunal drew an adverse inference from the fact that no new statements had been so provided.
35. To understand this ground of review, it is necessary to record that before the delegate, Ms Khu relied upon witness statements from her father and Mr Le’s father to support her claim the her relationship with Mr Le commenced in, and has continued since, 2012. The delegate determined that those statements should be given “limited weight” when assessing the genuineness of the relationship between Ms Khu and Mr Le. The delegate considered that it was more appropriate to give greater weight to the way in which Ms Khu and Mr Le described their relationship.
36. Ms Khu argues that: “Despite the delegate having effectively stated that such witness statements were of little evidentiary utility, the tribunal was critical of Ms Khu in its reasons for having supplied “no new statutory declaration or statements... to the tribunal that support the claim that the couple had known each other since 2012 or have been in a relationship since then”. As to that, in paragraph 23 of its reasons, the tribunal said:
    • 23. The Tribunal also observes at the hearing that no new statutory declarations or statements have been submitted to the Tribunal that support the claim that the couple had known each other since 2012 or have been in a relationship since then.
37. The applicant argues that by those comments the tribunal indicated that it was material to the review that there have been no new third party witness statements to support the genuineness of the relationship between Ms Khu and her sponsor. She argues that the tribunal thereby identified a new issue which Ms Khu was entitled to expect would not arise in relation to the review. She argues that having regard to the decision in SZBEL (above) the tribunal was obliged to bring this “new issue” to the attention of Ms Khu and her representative so that they could address it.
38. The first respondent contends that the tribunal did not identify any new issue at all but rather was part of the consideration of an issue that was before the tribunal as well as the delegate. That issue was one which concerned the social aspects of Ms Khu’s relationship with the sponsor or alternatively, the issue presented by criteria 300.216 and 300.221.
39. The tribunal was not obliged to provide Ms Khu with a running commentary on the evidence and what the tribunal made of that evidence. It was not required to set out every detail in its reasoning process. The tribunal was not required to forewarn Ms Khu of all possible reasons for failure of her application: Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 at [31] and the authorities there gathered by Griffiths J.
40. As the first respondent contends, the lack of third party statements which corroborated Ms Khu’s claims and the persuasiveness of Ms Khu’s substantive case was not an issue which required disclosure in the SZBEL sense. As the first respondent submits, “in the language of SZBEL, the tribunal’s process of reasoning reveals a “general unease about the veracity of what is revealed in [the] material” already submitted to the Ministers delegate”.
41. At least one of the purposes of the review was to provide Ms Khu with an opportunity to present her case again to a decision maker independent of the first respondent. The decision and findings of the delegate do not bind the tribunal in any way. The visa application is considered afresh. The review presented an opportunity to provide further evidence and a further opportunity to attempt to persuade a fresh mind around to acceptance of the applicant’s claims. It is a curious argument indeed to suggest that having made an application to review the decision of the delegate, the applicant should not attempt to prove her case in any way she sees fit because of statements and attitudes of the decision maker who made the decision under review.
42. In my view, this ground of review reveals no jurisdictional error.

Conclusion

43. The applicants ground of review do not reveal any jurisdictional error on the part of the tribunal. The application must, therefore, be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 December, 2016.

Date: 8 December, 2016