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MIGRATION - MRT decision - Remaining Relative visa - exclusion if "contact" between visa applicant and relative in other country "within a reasonable period before making the application" - visa refused on interview report admitting contacts - no jurisdictional error by Tribunal.

Nguyen v Minister for Immigration [2004] FMCA 911 (18 November 2004)

Nguyen v Minister for Immigration [2004] FMCA 911 (18 November 2004)
Last Updated: 13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION
[2004] FMCA 911




MIGRATION - MRT decision - Remaining Relative visa - exclusion if "contact" between visa applicant and relative in other country "within a reasonable period before making the application" - visa refused on interview report admitting contacts - no jurisdictional error by Tribunal.




Migration Act 1958 (Cth), ss.54, 55, 353(2), 359A, s.474(1), 483A

Migration Regulations 1994 (Cth), Regulation 1.15, Schedule 2, subclass 115

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 242

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:
DIANE THANH NGUYEN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1366 of 2004




Delivered on:


18 November 2004




Delivered at:


Sydney




Hearing date:


18 November 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


Applicant in person




Counsel for the Respondent:


Mr A McInerney




Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1366 of 2004

DIANE THANH NGUYEN



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application under section 483A of the Migration Act 1958 (Cth) ("the Migration Act") challenging a decision of the Migration Review Tribunal ("the Tribunal") made on 16 April 2004. The applicant is the sister of Thanh Uyen Nguyen ("the visa applicant") who applied in Vietnam for a visa allowing permanent residence in Australia under Class BO - Other Family (Migrant), subclass 115 (Remaining Relative) in Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). The applicant was her sponsor and had standing before the Tribunal as a review applicant to challenge the refusal of that visa. A delegate refused the visa on 11 March 2003.

2. One of the essential criteria for a subclass 115 visa is in reg.115.211(1) of Sch.2: "The applicant is a remaining relative of an Australian relative of the applicant." This criterion has to be satisfied at the time of application and also decision. A "remaining relative" is defined in reg.1.15:

(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

(a) the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

(b) the other person is usually resident in Australia; and

(c) if the applicant or the applicant's spouse (if any) has an overseas near relative:

(i) the applicant and the applicant's spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and

(ii) neither the applicant nor the applicant's spouse (if any) have had contact with that relative within a reasonable period before making the application; and

(d) the applicant and the applicant's spouse (if any) together have not more than 3 overseas near relatives; and

(e) if the applicant is a child who:

(i) has not turned 18; and

(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas --

at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

(2) In this regulation:

overseas near relative, in relation to an applicant, means a person who is:

(a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse (if any); or

(b) a child (including a step-child) of the applicant or of the applicant's spouse (if any), being a child who:

(i) has turned 18 and is not a dependent child of the applicant or of the applicant's spouse (if any); or

(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant's spouse (if any) --

other than a relative of that kind who:

(c) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d) is usually resident in Australia.

(3) For the purposes of paragraphs (1) (c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.

3. In the present case the critical issue for the delegate, and then for the Tribunal, was whether within the terms of reg.1.15(1)(c)(ii) the visa applicant in Vietnam had had "contact with" her father, a resident of the USA, "within a reasonable period before making" her visa application on 22 November 2002.

4. In her application for a visa, the visa applicant indicated that she had a mother residing in Australia, a father residing in the USA, a sister (the present review applicant) in Australia, and her own daughter living in Vietnam. Her application for a visa included her daughter as a secondary applicant.

5. In her covering letter, the visa applicant gave the following background:

I would like to apply for immigration to Australia as a Remaining Relative.

I am only one person in my family still living in Vietnam - my parents have two children, one is me and the other is my sister Diane Thanh Nguyen in Australia. Both of my parents have been living overseas (the evidence is enclosed).

I graduated Diploma in Law in Vietnam.

I studied English and Diploma of Management and Leadership at Australian College of Technology in Australia from 1999 to 2001. At the time I studied and stayed with my sister in Australia, I divorced my husband. Unfortunately, my daughter was sicked, I had to return to Vietnam to look after her and couldn't finish my courses at that time.

6. Accompanying the application were documents confirming the USA residence of her father, including a copy of his "green card" and other material confirming his employment and residence there.

7. The delegate requested that the visa applicant attend an interview with him in Ho Chi Minh City, and this was conducted on 11 March 2003. The delegate prepared a typed "interview report" which includes the following:

Thank you for coming in for interview today. I have asked you to attend this interview to discuss your application for a sub/class 115 last remaining relative application. The information you provide during this interview will assist me in determining whether you are able to meet the criteria for this visa.

Mr Hien is here to day to assist us by interpreting. (PA stated she can speak English and asked for the interview to be conducted in English. I indicated my preference to use Mr Hien, however the PA insisted on speaking English. I asked Mr Hien to remain in the room in case any clarification was required.)

(check preamble to interview form is signed). You have signed this form to confirm that you have read this document carefully and in particular, that you understand that you must answer all my questions as honestly and as fully as possible. It is an offence against the Migration Act to provide false or misleading information and this can adversely affect this application or any future applications that you might have with the Australian Government.

...

I will be typing as we speak so I might at times slow down the interview or I may be looking at the computer rather than at you, but I assure you that I am listening to you. It is important that we have an accurate record of today's interview.

Family Composition

Q Please tell me what family you have in Australia.

Family composition provided by PA As per Q56.

...

Q Do you have any other family living overseas other than those in Australia?

Yes, my father, he live in the United States.

...

Q Are your parents divorced?

Yes.

Q When did they get divorced?

In the year 2000. I was living in Australia at that time.

Q When did your mother go to Australia?

2001.

Q When did your father go to America?

2001 too.

Q Has your mother remarried?

Yes, Niko from Samoa.

Q Has your father remarried?

No, he hasn't.

Q How would you describe your relationship with your father?

Me and my father?

Q Yes.

It's very good. Every month he sends the money to me.

Q How much money does he send to you?

200 us per month.

Q How does he send the money to you?

People returning to VN. His Viet Kieu friends returning to Vietnam, he will give them money, maybe $1,000 at a time. He doesn't send money every month.

Q When was the last time you saw your father?

Last month.

Q Did he return to Vietnam?

Yes.

Q Did he stay with you?

Yes.

Q How long was he here for?

5 weeks.

Q Has your father ever visited your sister?

Yes.

Q When was that?

I think last year.

Q Did he stay with her?

I don't know. It was a short time only about 2 weeks because he had to go back to work in America.

Q I have a copy of his green card on file, how did you obtain copies of his documents?

He sent it to me.

Q How often do you contact your father?

Not very often. Sometimes he calls me once every few months. He is very busy.

Q Do you email him or write letters to him?

I have his email but mainly he calls me.

Q Tell me why you want to go to Australia?

Because I want to live with my sister. We lived together when I was studying in Australia.

Conclusion

Q I have no further questions. Do you have any questions or do you want to make any comments?

I want to go to Australia because I want to live with my sister. When I was in Australia I lived with my sister. My daughter she loves my little niece very much. It is very difficult for my father to visit me and my sister when I am in Vietnam. If I am in Australia it would be easier for my father to visit both of us ....

8. Not surprisingly, the delegate based his decision on this information, and concluded: "PA has demonstrated regular contact with her father in the US and therefore will fail to meet the 115 criteria."

9. On appeal, the Tribunal sent to the review applicant on 14 August 2003 an invitation pursuant to s.359A of the Migration Act to comment on "particulars of any information which the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review." The letter invited the review applicant to comment on pertinent statements in the interview report. A response was forwarded by the review applicant on 4 September 2003, and a further elaborate submission on 7 October 2003. The Tribunal then held a hearing at which the review applicant attended and in the course of which oral evidence was given by her, her husband and by telephone the visa applicant. The transcript of what happened at the hearing is not in evidence before me.

10. In the course of her written and oral submissions to the Tribunal, the review applicant presented a very large volume of material, only part of which has been reproduced in the Court book before me. Further bundles of documents which had been put to the Tribunal were passed up to me in the course of the hearing and will remain with the papers. Her submissions attacked the interview report with meticulous attention to some details recorded in it. I shall return to these later.

11. Her general argument was not that the delegate had correctly recorded deliberate or inadvertent statements by the visa applicant falsely suggesting a close relationship with her father. Rather, the review applicant sought to persuade the Tribunal that the Vietnam sister had a poor grasp of English, and that the interviewer had either misunderstood or wrongly recorded many of her answers. This explained why he had reached an entirely erroneous impression of the relationship between the daughter and father prior to and during the father's visit to Vietnam. Evidence was presented suggesting that, in fact, the relationship between both daughters and their father was hostile, and that they had had no contact with him in recent years until they contacted him purely to obtain documents to support the visa application. It was suggested that arising out of this contact, the Vietnam sister had reluctantly agreed to be the vehicle for distributing assistance to the father's mother, but it was denied that she actually met him during his visit to Vietnam shortly before the interview.

12. The Tribunal handed down on 16 April 2004 a statement of reasons for affirming the delegate's decision. In the statement, it identifies the legal issue posed by the matter, narrates the background, and summarises the material and submissions presented to it by the review and visa applicants.

13. In relation to the meaning of "contact" in reg.1.15, the Tribunal adopted an interpretation in the Departmental policy guide (PAM3) that:

`Contact' does not mean "physical contact" (such as a meeting) but rather communication in the sense of a social relationship. Non-social, unavoidable contact, for example

* for legal reasons such as the settling of a will, disposing of property or signing documents; or

* making contact with a relative at DIMIA's request;

should not be regarded as `contact' for the purposes of this regulation.

14. It also adopted the PAM3 explanation of "reasonable period":

The bar on contact `within a reasonable period' means contact throughout the period, rather than single instances of contact (specific to this provision, a reasonable period is, under policy, taken to be three years preceding the application).

15. No argument was presented to me concerning the legal correctness of either of these interpretations, and I do not need to examine them in the present case. This is because, on any interpretation, the exclusionary test of "contact with that relative within a reasonable period before the making of the application" in reg.1.15(1)(c)(ii) was satisfied if contacts of the kind described in the interview report were found to have occurred. The success of the applicant's case before the Tribunal, in my view, therefore turned on whether the Tribunal could be persuaded not to give evidentiary weight to the relevant responses recorded in the interview report. It did not turn on any issue of legal interpretation.

16. The Tribunal's reasoning on this question is contained within the following paragraphs:

33. The Tribunal does not accept that the answers given at interview resulted from a lack of understanding of English. The visa applicant willingly undertook to have the interview in English despite there being an interpreter present and despite her being encouraged on a number of occasions to utilise the interpreter. The visa applicant had studied English in Australia for 1� years. The responses given at interview were quite definite. The Tribunal is not satisfied the meaning was misconstrued by the delegate or that a summary of the responses has resulted in misrepresentations of what was said.

34. The review applicant has sought to show that there was no contact for a reasonable period prior to the visa application but the Tribunal is not satisfied that is the case. The Tribunal prefers the evidence given at interview. The Tribunal does not accept the various claims made by the visa applicant attempting to negate the evidence given in that interview. That evidence indicated that the visa applicant had considerable contact with her father and they were close. He sent her money regularly. The evidence indicates that the families of the father and the mother remain in contact.

17. The review applicant has appeared before me today without legal assistance, and I do not think she has legal training although it is apparent that she has had some assistance in preparing some legal submissions. She has presented many detailed arguments seeking to establish error by the Tribunal, including reference to sections of the Migration Act and passages of legislation and case law which I shall refer to below. If I were reviewing the fact-finding of the Tribunal, some of her arguments may have had some substance.

18. However, the powers of this Court when reviewing the Tribunal decision under s.483A of the Migration Act are conditioned upon being satisfied that there is a jurisdictional error affecting the Tribunal decision. This is because s.474(1) of the Migration Act prevents any relief by way of judicial review being given unless jurisdictional error is found according to the interpretation of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76] and subsequent cases.

19. My short conclusion is that I am unable to locate any jurisdictional error in the present Tribunal's reasoning. After fully considering all of the material that was before the Tribunal and the submissions that were put to me today, I have concluded that the Tribunal properly identified the issue for its decision, and has addressed that issue with findings of fact against the applicant. I consider that its conclusion was one which was legally open to it on the evidence, and cannot be characterised as so unreasonable as not to amount to a valid attempt to exercise jurisdiction.

20. I frame my opinion in these terms because there are some unsatisfactory aspects to the Tribunal's reasoning. Moreover, its omission of a detailed examination of some of the evidence and arguments that had been presented to it by the applicant has left an understandable sense of frustration in the mind of the present applicant.

21. The submissions that were put to me were numerous, but I shall attempt to identify them and explain briefly why I am not persuaded that they allow the Court to give relief.

22. The essential submission, which was repeated in various ways, was that the Tribunal did not use all the evidence that had been submitted, in the sense of refer to and examine all that evidence. For example, in the material there were telephone records for both the visa applicant's and review applicant's home telephones and information from passports and airline tickets, which had been presented in order to demonstrate some factual errors in the interview report, but which had not been specifically discussed by the Tribunal.

23. Unfortunately, I do not regard these points as giving rise to a legal error, let alone a jurisdictional error. I am not persuaded that the Tribunal in fact did not consider the material and the applicant's arguments on it, even though it does not expressly examine each point. I am prepared to accept the statement by the Tribunal in paragraph 16 of its reasons that: "The review applicant provided comments and further documentation - all have been considered by the Tribunal." I consider that the Tribunal is referring to this material when in paragraph 34 (see above) it refers to "the various claims made by the visa applicant attempting to negate the evidence given in that interview." Essentially this submission to me sought to challenge the reasonableness of the factual conclusion of the Tribunal, but in my opinion did not go further than querying its merits.

24. A subordinate series of submissions identified the following points which, it was submitted, had been established by material tendered to the Tribunal, and which "conclusively" showed that some statements recorded in the interview with the delegate were incorrect. The cumulative consequence of these various points was that the Tribunal was not able to rely on the interview report in any respect. These points included:

a) That the review applicant's telephone accounts in Australia during the period of the Vietnam sister's residence with her showed no contacts with the father.

b) That the sister's telephone bills in Vietnam showed no contacts with the father.

c) Somewhat inconsistently, that some receipts showing the visa applicant in Vietnam contacting the father by public telephone were limited in number and duration and only showed a short and rare contact with the father.

d) That a letter from the father addressed to the Vietnam sister confirmed that he had asked her to distribute money in six payments to her grandmother, and did not suggest that it was for her own benefit.

e) That a police certificate certified that during the father's visit to Vietnam in February 2003 his "temporary residence" was registered as the address of his mother and not his daughter.

f) That stamps in the father's passport and his ticket showed that he had been in Vietnam from 10 to 25 February and not for five weeks.

g) That the mother's passport showed that she had arrived in Australia on 13 August 2000 and not 2001 as is recorded in the interview report.

h) That the divorce decree of the parents shows that it was given on 14 December 1998 and not 2000 as the sister is recorded as saying in the interview.

25. I do not think it is necessary for me to analyse these submissions further. In my opinion, none of the points conclusively destroy the evidentiary value of the interview report for the Tribunal, particularly in relation to whether contacts in fact occurred between the daughter and father shortly before the application for a visa was made and while it was pending, and the quality of their relationship in the course of these contacts. I consider that it remained open to the Tribunal to prefer the relevant parts of the interview report in this respect.

26. Further criticisms of the Tribunal's reliance on the interview report were put to me. It was submitted that this was inconsistent with sections 54 and 55 of the Migration Act. However, these sections did not apply to the Tribunal.

27. It was submitted that there was a failure to apply s.353(2) of the Migration Act, due to the failure of the Tribunal to examine the above points. This provision requires the Tribunal to "act according to substantial justice and the merits of the case." However, I do not consider that this provision has not been complied with, even if non compliance were a jurisdictional error.

28. It was submitted that the Tribunal's failure to address the pieces of evidence I have identified above amounted to jurisdictional error of the sort identified in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 242 at [42]. However, I do not regard that case as relevant to the present situation. In my view, the Tribunal correctly identified and dealt with the matter which it was required to review.

29. It was submitted that the interview report could not have been used as reliable evidence because it was not signed and because it was not a verbatim record of an interview. However, in my view neither of those points has necessary pertinence to the situation of an immigration officer or review tribunal. In my opinion, the present interview report was appropriately accepted and given weight by the Tribunal as a contemporaneous note of statements made to a government officer by a person claiming to have, and apparently having, ability to communicate in English.

30. In this respect criticism was made of the Tribunal's statement in paragraph 33 that "the visa applicant had studied English in Australia for 1� years." It was put to me that, although she had permission to study in Australia for that period, she had spent some months of it out of Australia and that therefore the Tribunal's statement was inaccurate. I am not persuaded that the Tribunal's statement is not essentially correct nor open on the evidence, but in any event this would be a mistake of fact which would not vitiate the legal validity of the Tribunal's decision.

31. A further criticism of the interview was that it had not been recorded on a tape, which could be provided to the applicants under s.359A to allow them to check what had really been said. However, I do not regard this point as carrying any substance.

32. It was also submitted that the manner in which the Tribunal considered all the above points showed that it was biased against the applicants. I do not accept this submission, and can find nothing in the material before me to give it any substance.

33. Taking into account all the points that have been made to me I am not persuaded that the Tribunal's decision is affected by a jurisdictional error, and I therefore dismiss the application.

RECORDED : NOT TRANSCRIBED

34. I order the applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 7 December 2004
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