Le v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 397

FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 397 MIGRATION – partner (Provisional) (Class UF) visa – application for review of decision of Migration Review Tribunal affirming delegate's decision to refuse visa – whether Tribunal failed to give proper notice of letters and photographs forwarded by third party contesting genuineness of marriage – whether Tribunal decision based on fact which did not exist Migration Act 1958 (Cth) ss 338(5), 347(2)(b), 359A Migration Regulations reg 1.15A, Sch 2 cl 309, Sch 2 cl 309.211 Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1989) 17 ALD 552 cited TRAN DIEP THUY LE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS WAD 237 of 2003 NICHOLSON J 13 APRIL 2005 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 237 OF 2003

BETWEEN: TRAN DIEP THUY LE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NICHOLSON J

DATE OF ORDER: 13 APRIL 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 237 OF 2003

BETWEEN: TRAN DIEP THUY LE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NICHOLSON J

DATE: 13 APRIL 2005

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Migration Review Tribunal ('the Tribunal') made on 12 November 2003. The Tribunal affirmed the decision under review, namely, a decision by a delegate of the respondent made on 3 January 2002. The delegate decided that the visa applicant was not entitled to the grant of a Partner (Provisional) (Class UF) visa. The 'visa applicant' referred to in that decision is Ma Nhu Thuy, the husband of the present applicant who is his sponsor and his wife. 2 The visa applicant is a national of Vietnam. He applied for his visa on 31 October 2001. He and the applicant had been married in Vietnam on either 3 August 2001 (the date of their marriage certificate) or in October 2001 (the date of the ceremony). 3 Prior to the decision of the delegate on 31 December 2001, two letters had been sent to the Department of Immigration by a third party. One was dated 8 March 2001 and the other 17 October 2001. They were not referred to in the reasons for decision of the delegate. 4 Prior to the hearing of the Tribunal, the Tribunal gave a notice dated 10 June 2003 in the following form to the applicant in respect of those letters and what was said to be supporting photographs: 'Section 359A of the Act states that the Tribunal must explain, and invite comment on, 'particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'. You are invited to comment, in writing, on the following information: · The Tribunal currently has before it two letters, sent by a third party, in which it is alleged that you are not in a genuine spousal relationship with the visa applicant. These letters state that you are actually in a relationship with the visa applicant's brother and that the marriage has been contrived for the purposes of migration to Australia. It is further alleged that the visa applicant's brother has also contrived a false marriage to your cousin for the same purpose. · Evidence has also been provided in support of these claims. This evidence consists of photographs of you in affectionate poses with both brothers. This information is relevant to the review because it may contribute to a finding that you and the visa applicant are not in a genuine and continuing spousal relationship. Should this be the case the visa applicant will not be considered eligible for the grant of a Partner (Provisional) (Class UF) visa.' 5 A request was made on behalf of the applicant to the Tribunal for copies of the letters or the photographs, but this was declined. Solicitors on behalf of the applicant wrote on 30 June 2003 denying the applicant was in a relationship with the brother of the visa applicant; denying the marriage between the visa applicant and the applicant was contrived; and explaining the existence of photographs which may show the applicant in affectionate poses with the visa applicant's brother. 6 In September 2002, the Tribunal requested evidence from the applicant that she and her husband, the visa applicant, were in a genuine continuing relationship. Documents were provided in response in October 2002. Those documents, including telephone records, records of funds transfers, photographs and correspondence in Vietnamese were provided to the Tribunal. Further material was provided on 6 November 2002. A hearing occurred before the Tribunal on 4 December 2002. 7 Although the visa applicant had been the applicant before the delegate, the application for review in the Tribunal was brought by the present applicant as the sponsor of the visa applicant: see s 347(2)(b) and s 338(5) of the Migration Act 1958 (Cth) ('the Act'). As the application was made in March 2002 it did not come under the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).