Phan v Minister for Immigration & Multicultural Affairs [2000] FCA 89 (11 February 2000)

Last Updated: 27 March 2000

FEDERAL COURT OF AUSTRALIA

Phan v Minister for Immigration & Multicultural Affairs [2000] FCA 89

MIGRATION - judicial review where application for Spouse visa, Subclass 100 unsuccessful before Immigration Review Tribunal - where actual relationship did not qualify applicant as a "spouse" - whether error disclosed by Tribunal's failure to provide adequate reasons for its conclusion - treatment of contradictions in evidence given by husband and wife and its significance to the finding that there was no reliable evidence of a genuine marriage - whether requisite standard of interpretation compromised in matters of importance to applicant's case

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 cited

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 cited

Chedyak v Minister for Immigration and Multicultural Affairs [1998] FCA 1731 cited

Migration Act 1958 (Cth) s 358(1)(b)

MY NGAN PHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 477 OF 1999

KIEFEL J

BRISBANE

11 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	N 477 OF 1999

BETWEEN:	MY NGAN PHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	11 February 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The costs of the respondent are to be paid by the review applicant, Hoa Giao Nguyen.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	N 477 OF 1999

BETWEEN:	MY NGAN PHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KIEFEL J
DATE:	9 FEBRUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 The applicant is a citizen of Vietnam and was an applicant for a Spouse Visa, Subclass 100. The basis of that application was her marriage to Hoa Giao Nguyen, an Australian citizen ("the review applicant"). The Minister's delegate refused the application and on 29 April 1999 the Immigration Review Tribunal affirmed that decision. The Tribunal concluded that the applicant did not satisfy the prescribed criteria for the grant of the visa.

2 The criteria to which the decision related (Schedule 2, clause 100.211(2)(a) to the regulations to the Migration Act 1958 (Cth) was that the applicant be the "spouse" of an Australian citizen. "Spouse" is defined as one of two persons in a married or de facto relationship. The existence of such a relationship requires the Minister to be satisfied that they have "a mutual commitment to a shared life as husband and wife to the exclusion of all others" and that "the relationship between them is genuine and continuing" (regs 1.03, 1.15A(1)(a) and (b)).

3 The application for review did not identify the grounds for it but two emerged in the written and oral submissions: that the reasons provided by the Tribunal were not sufficient and that the applicant was effectively denied the opportunity to give evidence, by reason that the interpretation was seriously flawed. In these reasons, I shall mainly refer to the visa applicant as "the wife" and the review applicant as "the husband".

Tribunal Reasons

4 The Tribunal concluded that:

"Whilst I am satisfied the parties have undergone a marriage ceremony I am not persuaded on the balance of probabilities that there is a mutual commitment to and an intent to maintain a genuine and continuing marriage. I find that the Visa Applicant does not satisfy the prescribed criteria for the grant of a Subclass 100 Spouse visa."

5 It was submitted that the decision did not disclose a reasoning process sufficient to constitute compliance with the Act. Section 368(1)(b) provides that the Tribunal is obliged to give reasons and it has been held that one of the purposes of that requirement is to enable unsuccessful applicants to understand why their application has failed: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, 27.

6 In that part of the decision entitled "Evidence and Findings" the Tribunal set out, in summary, the stories given by each of the husband and wife which included the circumstances in which they had met in Vietnam; the contact between them prior to his proposal of marriage; the extent of contact by telephone and correspondence in the intervening period, 1991 to 1995; his financial position and her knowledge of it, and his maintenance of his wife. In relation to the evidence of contact it appeared, from part of the review officer's findings included in the reasons, that the wife held some letters from the husband which had come from Australia and were sent in a period when he was in fact in Canada. The husband's explanation of how this came about assumes some importance in the view the Tribunal took of the reliability of their evidence.

7 The Tribunal summarised the evidence given by each of the husband and wife which commenced with the story of their meeting in a movie theatre in Phutan, Vietnam, in December 1991. The wife gave evidence by telephone from Vietnam. The husband was present at the hearing and represented by a migration adviser who spoke Vietnamese. The evidence of the wife and husband was interpreted. At the conclusion of its summary of their evidence, the Tribunal recorded that it had asked the husband to "comment on the many contradictions between his evidence and the (wife's)", to which he apparently replied that they probably arose because she lived in a village and was upset about answering the questions over the telephone. The contradictions were not listed by the Tribunal, but it would seem that the husband was aware that there had been some, and certainly his legal advisers were when it came to submissions at the conclusion of the hearing.

8 It is necessary to identify the contradictions and omissions in the evidence because of the need later to consider whether any inaccurate interpretation was connected with them and therefore to have worked as influential in the result.

9 The husband and wife recalled seeing a different type of movie on the evening when they first met. They gave quite different accounts of the extent to which they saw each other following their first meeting and the details of it. The husband gave a detailed account of the next meeting, being at her parent's house the following day, at his request, and at which time he had asked her parents if he could marry her. No similar account was given by the wife, who said that they met the next day in a coffee shop; and then at her family home at her request (with no mention of marriage). On her account, the question of marriage arose at the next meeting between them at a coffee shop. She accepted his proposal at that time. It was first made to her parents in 1995. The husband's account had him returning to her parent's home and having meals and occasionally taking her out shopping or for drinks. He said that they saw each other regularly over a three month period before he returned to Australia, varying from a reference to ten times to every few days. The wife, it would appear from the transcript to which I shall later refer, had only mentioned contact with him in the two weeks after their first meeting. I shall refer to this aspect of the evidence, and the Tribunal's observations again in these reasons when dealing with difficulties encountered with interpretation.

10 The husband returned to Australia in early 1992 and did not return to Vietnam until June 1995 when the marriage took place. The Tribunal found that "no convincing explanation was proffered to show the extent of the contact between 1991 and 1995" and that both failed to provide any reasonable description of the contact in this period. The wife said that the contact was by telephone. There was no satisfactory evidence of telephone calls and the husband said he made calls from a public telephone to a relative of his wife. There was no evidence from the relative. In total fifteen notes, two letters, one telephone bill (unidentifiable by the Tribunal) and eight money transfers for sums totalling $21,500 were produced at the hearing. The husband said that he had arranged for about $1,000 to be forwarded to his intended wife in 1992, but no evidence was produced of it.

11 The husband said that he wrote only a few letters as he had no time to do so given his business. Some were obviously identified as those sent to his wife from Australia whilst he was in Canada, an aspect of the evidence to which I shall shortly turn. Some further evidence, tendered to explain the paucity of corroborating documentary evidence, suggested there were as many as twenty letters. The evidence given by a person in the office of the husband's migration adviser was that they had been given documents by the husband - a Christmas card; a birthday card from the wife to the husband; around ten photographs of him and his wife; five telephone bills and the letters - but that they could not now be found. The Tribunal described this affidavit as "disturbing", reciting the husband's evidence of the small number of letters written; the lack of explanation as to why replacement telephone bills were not sought and copies of the photographs obtained. The affidavit was apparently tendered on the day of the hearing. The husband and the wife did not refer to the missing documents.

12 As earlier mentioned, the trip to Canada and the explanation as to how the letters came to be sent to his wife in this period appear to have been influential with the Tribunal. It said that it raised doubts "about the relationship and the credibility of the two applicants". The wife had given evidence to the Department that she had not known of the trip until afterwards. The husband explained that his keeping the trip a secret from her and his maintaining an appearance of being in Australia came about because of her jealousy and her desire for him not to go to Canada. The husband and another witness spoke of the system employed, whereby the husband would send a letter from Canada to a friend in Australia who would then send it to the wife in Vietnam in envelopes which the husband had earlier prepared and left with him in Australia. The husband said he was in Canada for nearly four months. He was then asked what was done about telephone calls to his wife in this period and he said that he had closed his business and told her not to ring him as he would not be at home, but looking for work. The husband just wrote in this period, and was not asked by his wife as to his whereabouts. The wife said that she did not ring him and simply waited for his telephone call and that he just wrote to her. The husband and wife and the husband's advisers could not have been left in doubt about the Tribunal's view of this evidence:

"The explanation given for the mechanism plainly designed for concealing the Canada trip from his wife does not accord with his account of her objection to his taking that trip nor does that latter evidence of his with her account. His explanation is peculiar and implausible. The adviser goes on to say that in his view this indicates that the Review Applicant loves his wife as he would not have gone to such trouble if he did not. The Tribunal does not accept this and finds this story and the witness unreliable and the evidence suspect.

13 The husband said that he returned to Vietnam in 1995, having telephoned his intended wife a week before. He visited the family and one month later, on 16 August 1995 they were married.

14 A consideration of the husband's financial position, which suggested that his repayments of borrowings alone exceeded his salary, led the Tribunal to comment that his account was suspect. The wife gave evidence that her husband had recently sent her $5,000, but that she did not remember how much he had sent before, although he sent money many times and in varying amounts. In relation to her knowledge of the property owned by her husband (which included a house purchased in 1997 which he was paying off), the wife said that he only mentioned owning a car and furniture. The wife said that her husband worked in a hot bread shop; he said he had worked in an ironing factory and now drove a delivery truck for a clothing manufacturer.

15 Evidence was also given by a Ms Van Tran, apparently to counter a suggestion earlier raised that she and the husband were involved romantically. She shared the house owned by the husband although she had said she did not know he owned it. She said they were distant relatives. The Tribunal did not make a positive finding about the relationship, but said that it was difficult to accept that the witness did not know he owned the house, and commented upon the long history of their residential relationship.

16 The husband's migration adviser provided a submission to the Tribunal dealing with some of the contradictions in the evidence between the husband and wife. A problem with the interpreter was identified. Curiously, it was alleged that the translation of the husband's evidence, earlier in the day, was careful and the quality "high", but when the wife gave evidence the interpreter lost concentration. A review of the interpretation, to which I refer later in these reasons, discloses the majority of errors occurred in connexion with the husband's evidence which was longer. The Tribunal did not accept the adviser's contention, and observed that there was no problem indicated with the interpreter until the evidence of the wife raised obvious contradictions with that of the husband. At various points, when the migration adviser had indicated that there was a problem in the translation, the Tribunal said that it had asked the same question in a different fashion but received the same reply.

17 In relation to the trip to Canada, the Tribunal rejected the construction the adviser sought to put upon it, one favourable to the relationship, and concluded in the terms set out above.

18 It is difficult to understand how it could be said that the Tribunal's reasons for the conclusion reached, that there was not a genuine marriage, are not apparent. It was necessary for the Tribunal to consider what credible evidence there was of a genuine marriage. It could have summarised its views on the evidence and could have specified the inconsistencies and gaps in the evidence. The inconsistencies were, however, readily apparent, as was the Tribunal's view of them. Generally, the Tribunal's views as to the evidence were interspersed throughout its summary of the evidence. It pointed out that there was no acceptable explanation of the contact between the couple during the period intervening 1991 and 1995, which contact was clearly very limited; the evidence of contact in the Canada period was "peculiar and implausible"; the migration agent's evidence, that there had been other documents relevant to this topic was regarded with concern, not acceptance. The Tribunal said, in conclusion:

"The various accounts are in many respects incredible and leave unexplained too much for the assertions of a genuine marriage to be accepted."

The Tribunal was plainly not satisfied that there was a genuine relationship on the basis that there was no reliable evidence from which it could draw that conclusion.

This ground for review fails.

The Interpreter

19 The migration adviser argued before the Tribunal that a new hearing was required having regard to the quality of the interpretation; the fact that the Tribunal had failed to ascertain sufficient information and had failed to act on certain suggestions from the adviser. The Tribunal rejected all three. Only the first is now relevant as a ground for review. The Tribunal recorded two questions it had put to the adviser at the conclusion of the hearing and his response. The second of them assumes some relevance now:

"1. `Was there anything not put by the Tribunal that should have been put' [sic] and the adviser answered `No',

2. `Was there anything put by the Tribunal that was not understood' [sic] and the adviser answered `No'."

20 It has been held that there is an obligation to provide an interpreter where one is necessary to enable a hearing: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507. That obligation could not be fulfilled if there was not a proper interpretation. Kenny J considered the standard which is required of an interpreter, but it is not necessary for me to discuss it in detail. It is sufficient for me to observe that the purpose of an interpreter is to enable communication between the Court and the witness which does not misrepresent or distort the evidence or the way in which it is given, and enables an applicant to put forward his or her case.

21 In this case, it was suggested in argument that there were so many errors and inaccuracies in the interpretation that one must necessarily conclude that the process had failed. I was provided with a further translation which permitted a comparison of the Tribunal member's questions, as put to the witness, with the original question; the response of the witness as given to the Tribunal with the witness' own answer; and some conversations between the interpreter and witnesses. The translation relates to only part of the hearing. I have considered it. A number of errors appear, but it could not be concluded that they resulted in a breakdown of communication, significant and unresolved misunderstandings, or that they could have created a wrong impression of the witnesses such as might affect their credibility. The Tribunal did not, in any event, base its decision upon credibility determined by demeanour and made mention on only one occasion of the husband apparently being in difficulty, or suffering from confusion, when answering a question. It was the extent of the evidence - its inherent unreliability which was decisive.

22 Apart from the few more pronounced examples of difficulty being encountered in the process, the problems apparent in the interpretation were inconsequential. Departures from the requisite standard of interpretation must be seen to have occurred with respect to matters which were important to the applicant's case: Chedyak v Minister for Immigration and Multicultural Affairs [1998] FCA 1731; Perera, 23. Whilst, on occasions, there was some inaccuracy or omission in the question as put to the witness, and sometimes a shortening of or inaccuracy in the answer given to the Tribunal, they do not concern matters of substance, particularly when regard is had to the findings of the Tribunal and the contradictions in the evidence. By way of example, the interpreter failed to convey the statement by the Tribunal that accompanied its question of the husband about the movie he had seen on the occasion of the first meeting, which would have conveyed that the Tribunal placed some importance on his ability to recollect. However, he gave evidence of his recollection and it cannot be said that the omission had an effect.

23 There was a point where some real difficulty was encountered. It occurred when the Tribunal member was attempting to put to the husband the different account given by the wife about the extent and duration of their contact after their first meeting and whilst he was in Vietnam. Despite the intervention of the migration adviser at a number of points and attempts by the Tribunal to have the correct question put to the husband for his comment, it could not be achieved. It seemed to me that the interpreter could not understand what it was he was supposed to convey. Its relevance is not however as an erroneous communication. It might possibly raise the question whether the attempt to put the wife's version should have been persisted in, but questions of procedural fairness are not relevant here. It was this part of the evidence which led the Tribunal to comment that the husband appeared confused. In my view this was not correct, but nothing turns upon it. Even if the comment is to be taken as one intended as adverse to the husband, the Tribunal did not base its decision upon demeanour.

24 The evidence I have referred to so far was that of the husband. Contrary to the submission which had been made to the Tribunal about the interpretations of the husband's and the wife's evidence, there appear to be few errors concerning the wife's evidence. The wife's evidence concerning the time her parents were first told of the proposal of marriage took some time to properly elicit, in part because the interpreter was not putting the Tribunal's questions accurately to her, but it was eventually obtained.

25 The transcript also shows that, on a number of occasions when an error occurred, as a response might indicate, the Tribunal member had the question or answer clarified before proceeding further. The migration agent, who spoke Vietnamese, interjected when he considered the interpreter was in error. I am confirmed, to an extent, in my view that there was no misunderstanding of substance by his actions and by his confirmation, at the conclusion of the Tribunal hearing, that the Tribunal's questions were, in his view, understood.

Conclusion

26 The application will be dismissed, with costs to be paid by the review applicant.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 11 February 2000

Counsel for the Applicant:	Mr R J Brender
Solicitor for the Applicant:	D.T. Dao & Co. Solicitors
Counsel for the Respondent:	Ms A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 September 1999
Date of Judgment:	11 February 2000