Thiem v Minister for Immigration & Multicultural Affairs [2000] FCA 1909 (21 December 2000)

Last Updated: 5 January 2001

FEDERAL COURT OF AUSTRALIA

Thiem v Minister for Immigration & Multicultural Affairs [2000] FCA 1909

IMMIGRATION - whether Tribunal failed to address evidence of applicant's mother

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 referred to

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 followed

Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933 referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 followed

HIENG THIEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 320 OF 2000

BEAUMONT J

21 DECEMBER 2000

SYDNEY

THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 320 OF 2000

BETWEEN:	HIENG THIEM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	21 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 320 OF 2000

BETWEEN:	HIENG THIEM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	21 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 Sovanny Ngin, a Cambodian national, applied to the Minister for a Spouse (Provisional) (Class UF) Subclass 309 visa. Regulation 1.15A of the Migration Regulations 1994 ("the Regulations") is used to determine whether an applicant is a spouse of an Australian citizen. (Hieng Thiem, the applicant in this proceeding, is an Australian citizen). Relevantly, Reg. 1.15A provides:

"(1A) Persons are in a married relationship if:

(a) they are married to each other under a marriage that is

recognised as valid for the purposes of the Act; and

(b) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as

husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and

continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent

basis."

2 Regulation 1.15A(3) provides that in forming an opinion whether two persons are in a married relationship, the Minister must have regard to all of the circumstances of the relationship, including in particular:

" (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 party to the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i) any joint responsibility for care and support of children, if any; and

(ii) the parties' living arrangements; and

(iii) any sharing of responsibility for housework;

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

(i) whether the persons represent themselves to other people as being married ...;

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship;

(iii) any basis on which the persons plan and undertake joint social activities;

(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."

3 The Minister's delegate refused Ms Ngin's application. Mr Thiem sought Tribunal review of that decision. The Migration Review Tribunal decided to affirm the Minister's decision that Ms Ngin was not entitled to the grant of a visa. Mr Thiem now seeks judicial review of the Tribunal's decision.

4 In order to understand the nature of the issues that arise in the proceedings, it will be necessary to refer to the Tribunal's reasons for decision.

THE TRIBUNAL'S STATEMENT OF REASONS FOR ITS DECISION

5 The Tribunal first described the evidence before it, to the following effect:

* Ms Ngin is 30 and a Cambodian national.

* Mr Thiem is 33 and an Australian citizen who first arrived in Australia on 29 September 1994. He departed Australia for Cambodia on 4 November 1997, returning to Australia on 27 November 1997.

* Mr Thiem and Ms Ngin met through family connections in 1993. Their families arranged their marriage, and, as arranged, he returned to Cambodia for this purpose in November 1997. They married in Cambodia on 7 November 1997.

* On 3 December 1997, Ms Ngin lodged her visa application.

* In January 1999, Ms Ngin informed the Department that although Mr Thiem did not include her in his application for migration (in 1994), he planned to sponsor her to Australia after he was granted Australian citizenship (which was in 1997). She said that she had been Mr Thiem's girlfriend from 1993 and that their parents considered them fiancees.

* Mr Thiem's evidence to the Tribunal was that he first knew Ms Ngin in 1993, but had not, at that time, or by 1994, when he came to Australia, formed an intention to marry her; and that, if he had not been granted Australian citizenship, he would not have married her. He formed the intention to marry only after he became an Australian citizen.

* The evidence to the Tribunal of Mr Thiem's mother (Mrs Ran Thiem) was that she introduced the couple. She had known Ms Ngin's mother for many years. She attended the wedding. She took money to Ms Ngin twice and on one of these occasions her son (Mr Thiem) was living with Ms Ngin.

* Ms Ngin provided to the Tribunal a marriage certificate, registered on 25 November 1997, certifying that Ms Ngin and Mr Thiem were married on 7 November 1997. A wedding invitation and photographs, showing them in traditional dress and a wedding procession, were also provided to the Tribunal.

* Mr Thiem gave evidence to the Tribunal that after the marriage he returned to Cambodia for about 5 months, and during that time, he lived with his wife.

* Ms Ngin lives with her parents, two sisters and her brother. According to the evidence of Mr Thiem's mother, when she visited, she stayed in the same house. There, Ms Ngin's parents slept in one room, Mr Thiem and Ms Ngin in another room, her sisters shared another room and her brother slept on the lounge.

* When in Australia, Mr Thiem lives with his mother. He used to work but is now too sick to work. When he was working, he used to send money to Ms Ngin.

* According to Mr Thiem's evidence, he often telephoned his wife. His mother, Mrs Ran Thiem also telephoned the household. The telephone accounts often show up to three short duration calls a day. The short duration may be an indication that when he called, someone other than Ms Ngin answered.

* Ms Ngin "provided [the Tribunal with] scant evidence of the relationship". In the Departmental interview, Ms Ngin stated that Mr Thiem had been sending letters and telephoning. She sent a letter to her mother-in-law on 3 March 1999, "supposedly with" some receipts for the purchase of goods, the address of the wedding venue and the cost of a necklace Ms Ngin said they bought in Phonm Penh. She informed the Department that a letter was lost during the fighting in 1997, but that she did have a few letters left. Produced to the Tribunal were only short letters from Ms Ngin to her husband and one letter from Mr Thiem to his wife.

* In their statutory declarations, other witnesses stated that they took money to Ms Ngin for Mr Thiem. Also, the couple have a joint account in Cambodia with US$5,000 in it, which was opened on 23 March 1999 with money which Mr Thiem said he had saved. No further deposits had been made. Mr Thiem said that they were given money as wedding presents, all of which had been spent. In a statutory declaration dated 22 December 1999, Mom Soun stated that in April 1997 she took US$500 to Ms Ngin from Mr Thiem. Chhen Uch declared that in May 1998 he took US$500 to Ms Ngin from Mr Thiem.

* In her Departmental interview Ms Ngin confessed to being involved in previously lodging visa applications containing false and misleading information, viz. that she was married with 3 children. Mr Thiem informed the Tribunal that he knew nothing of these applications.

* In her first visa application, lodged on 4 September 1997, Ms Ngin stated that she was married, born on 30 December 1964, had children and owned her own business; and that she wished to visit her aunt in Victoria. No reference was made to Mr Thiem in the application.

* Her second application, lodged on 14 October 1997, also stated that Ms Ngin was married, had children, owned a business and wished to visit her aunt in Victoria.

* Each application had supporting documentation, but each was rejected (the last one on 16 October 1997) on the basis that the Department was not satisfied that there was a genuine intention to visit Australia.

* The present spouse application was completed on 10 November 1997. Ms Ngin said that its details were correct and that she had made the earlier (visitor) visa applications because she missed her husband.

6 The Tribunal expressed its findings as follows:

q Ms Ngin married Mr Thiem an Australian citizen, on 7 November 1997. However, marriage does not, alone, satisfy the definition of "spouse" under the Regulation.

q Regulation 1.15A(1A)(b) requires amongst other things, that Ms Ngin and Mr Thiem have a mutual commitment to a shared life and that their relationship is genuine and continuous. Ms Ngin and Mr Thiem first met in 1993 prior to Mr Thiem's migration to Australia in 1994, but Mr Thiem made no commitment until 1997. There was no relevant relationship before that date.

q Evidence of the criteria specified in Regulation 1.15A(3)(see above) was "largely absent from this relationship".

q The parties only joint asset was a bank account into which only one deposit was made. As Ms Ngin was living in Cambodia and Mr Thiem in Australia, they do not share household expenses.

q Apart from the evidence of the parties and of Mrs Ran Thiem, there was no evidence about the time the parties spent together in Cambodia when Mr Thiem visited there between February and June 1999. Both normally live with their parents.

q Mr Thiem sent Ms Ngin some money in 1997 and Mrs Ran Thiem brought some money in her visit in 1999. However, Mr Thiem has been unable to work since his return to Australia in 1999.

7 The Tribunal conducted its findings as follows:

"44. There is no evidence to indicate that the applicant and sponsor established a household together, particularly during the four months they were together from February to June 1999. The evidence is that they lived with the Applicant's parents.

45. No substantial evidence has been provided in relation to the social aspects of the marriage of the applicant and the sponsor either prior to their marriage or subsequently. There is no independent evidence to show that their marriage is genuine or that anyone else knows about it, with the possible exception of unnamed persons in the wedding procession and the two declarants who took money to the applicant.

46. The Tribunal found the Sponsor to be an unco-operative witness. He was evasive and it was extremely difficult to extract any information from him. In a case where the credibility of the parties was vital to overcome inadequate documentary or third party evidence of the marriage, the poor performance of the Sponsor and the Applicant made a favourable decision as to the genuineness of the marriage, in the view of the Tribunal, impossible.

47. The Tribunal finds that the marriage of the sponsor and the applicant is not one which is a mutual commitment to a shared life as husband and wife to the exclusion of all others; and the relationship between them is not genuine and continuing within the meaning of subclause 309.211. It follows that the grant of the visa sought is not appropriate.

THE APPLICATION FOR JUDICIAL REVIEW

8 Several grounds of review are sought to be relied upon as follows:

9 The first ground, calling in aid the observations of the Full Court in Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 at par 42, is that the Tribunal here -

"fail[ed] to address all the substantial matters which might bear on whether an applicant for a ... visa meets ... the [statutory] requirements ... [so that there is] a constructive failure to exercise jurisdiction ... [and] such a decision will be one `not authorised by the Act' within the meaning of s 476(1)(c)..., and may involve an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found within the meaning of s 476(1)(e) ...".

10 On behalf of Mr Thiem it is submitted that the evidence of Mrs Ran Thiem was a substantial matter that did bear upon whether the marriage was genuine. Yet, Mr Thiem argues, the Tribunal failed to address it, with the consequence, the argument goes, that the Tribunal's decision was not authorised by the Act.

11 I cannot accept the argument.

12 As has been seen, the Tribunal's reasons indicate that it did, in truth, direct itself to the appropriate question which was whether the marriage was genuine. There was no failure, constructive or otherwise, to address the issue posed by the statutory scheme. The Tribunal did, as noted above, refer to the substance of the evidence of Mrs Ran Thiem. The complaint now made is really no more than an attempt to suggest that the Tribunal failed to give particular weight to her evidence.

13 The second ground of review is that the Tribunal failed to give adequate reasons, in breach of s 368(1) (s 476(1)(a)), by failing, the argument runs, to indicate its assessment of the weight of the evidence of Mrs Ran Thiem. Reliance is placed upon the Full Court decision in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845.

14 The majority judgment of Black CJ, Sundberg, Katz and Hely JJ in Singh is authority for the following propositions in relation to s 430(1) (the counterpart of s 368(1)):

[diamond] A failure to comply with s 430(1) is a failure to observe procedures required by the Act to be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43];

[diamond] Section 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47];

[diamond] There is no specified requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see [46];

[diamond] The RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. Consequently, it must make findings on questions of fact "that are central to the case raised by the material and evidence before it" or upon which the "decision, one way or the other, turns", having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57];

[diamond] A requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56]. Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64];

[diamond] Fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62].

15 (See Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933 at par 13.)

16 In my opinion, no breach of s 368(1) has been shown here. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (at pars 64 - 65):

"[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs, Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said:

Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.

...

It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

[65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out `the reasons for the decision' (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

17 In my view, when, as seen, the ample reasoning of the Tribunal is read as a whole, it appears that the reasons given give a fair indication of the process by which the Tribunal concluded that the marriage was not shown to be genuine; and the Tribunal was not required to analyse every aspect of the material before it in the line by line manner mentioned by McHugh J. The Tribunal dealt with the substantial questions for determination.

18 The application is dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 21 December 2000

Counsel for the Applicant:	C Colborne
Solicitor for the Applicant:	Craddock Murray & Neumann
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 December 2000
Date of Judgment:	21 December 2000