AYH19 v Minister for Home Affairs & Anor
[2019] FCCA 585
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYH19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 585 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359AA, 359A, 376 Migration Regulations 1994 (Cth) |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 Babicci v Minister for Immigration (2005) 141 FCR 285 Lee v Minister for Immigration [2005] FCA 464 Minister for Immigration v Lat (2006) 151 FCR 214 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZYPZ v Minister for Immigration [2012] FCA 478 Waensila v Minister for Immigration [2016] FCAFC 32 |
| Applicant: | AYH19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1316 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Zinn of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1316 of 2018
| AYH19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 April 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a Temporary Partner visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 26 February 2019.
The applicant is a citizen of China who arrived in Australia as the holder of a Student (Subclass 571) visa on 12 March 2008. His last substantive visa expired on 15 March 2010.[1] The applicant remained unlawfully in Australia for almost two and a half years before unsuccessfully applying for a protection visa and a medical treatment visa. The applicant was also unsuccessful in judicial review proceedings in relation to those decisions.[2]
[1] Court Book (CB) 134
[2] CB 134. The applicant has been allocated a pseudonym because of the protection visa application
On 16 August 2016, the applicant made a combined application for Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visas. The applicant was sponsored by his de facto spouse, an Australian permanent resident (the sponsor). The applicant claimed he commenced a de facto relationship with the sponsor in January 2014.[3]
[3] CB 1-49
On 9 December 2016, the delegate refused to grant the visa on the basis that the applicant did not meet clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as the applicant failed to satisfy criterion 3001, 3003 and 3004. Specifically, the delegate found the applicant did not satisfy criterion 3001 as the visa application was not made within 28 days of his last substantive visa having ceased and there were no compelling reasons for not applying criterion 3001. As the applicant did not meet clause 820.211(2)(d), the delegate refused to grant the applicant a Subclass 820 visa, and it followed that he could not meet the criteria for the grant of a Subclass 801 visa.
The Tribunal
The applicant applied to the Tribunal for review on 22 December 2016.[4]
[4] CB 164
The applicant attended a hearing on 7 March 2018[5] and on 20 April 2016, the Tribunal affirmed the delegate’s decision on the same basis.[6]
[5] CB 228-230
[6] CB 235-247
The applicant was required to satisfy criterion 3001, 3003 and 3004 unless the Minister was satisfied that there are compelling reasons not to apply those criteria.[7] The Tribunal found that the applicant last held a substantive visa on 15 March 2010, and his visa application was lodged on 16 August 2016 (more than six years after he last held a substantive visa). Accordingly, the Tribunal correctly found that the applicant did not satisfy criterion 3001.[8]
[7] clause 820.211(2)(d)(ii)
[8] CB 241, [39]-[40]
The Tribunal considered whether there were compelling reasons not to apply the Schedule 3 criteria.[9] The Tribunal noted that “compelling reasons” is not defined but the reasons should be sufficiently powerful to lead a decision-maker to make positive findings in favour of waiving the required criteria.[10] The Tribunal also correctly noted that compelling reasons for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.[11]
[9] CB 241, [41]
[10] citing MZYPZ v Minister for Immigration [2012] FCA 478 at [10] and Babicci v Minister for Immigration (2005) 141 FCR 285 at [24]
[11] CB 241, [42]; citing Waensila v Minister for Immigration [2016] FCAFC 32
The Tribunal accepted that the applicant was involved in a motor vehicle accident in 2010 but was not satisfied that this event and any subsequent treatment explained why he did not seek to regularise his unlawful visa status for such an extended period of time. The Tribunal did not accept the circumstances that resulted in the applicant failing to hold a substantive visa at the time he applied for the Partner visa were beyond his control, or that they provided a compelling reason not to apply the Schedule 3 criteria.[12]
[12] CB 242, [45]
The Tribunal accepted “at face value” that the parties had been in a genuine relationship for over four years. However, the Tribunal found that a genuine partner relationship was the “basic requirement” for a Partner visa application, and the parties had failed to demonstrate that the longevity of their relationship was a compelling reason not to apply Schedule 3 criteria. The Tribunal also found that the fact that the parties were in a genuine and continuing relationship was not of itself a compelling reason for not applying the Schedule 3 criteria as it was already a criterion which must be satisfied in order to meet clause 820.211(2)(a) and that particular aspects of the relationship “must provide a compelling reason”.[13] The Tribunal also accepted that all parties in a genuine relationship where an application for a Partner visa is lodged offshore must face some degree of emotional and financial hardship including a period of separation while the Partner visa application is processed and the associated costs of separate households.[14]
[13] CB 242, [48]
[14] CB 242, [49]
The Tribunal accepted on the basis of the medical evidence before it that the sponsor suffered from a “generalised anxiety disorder” which responded well to psychological counselling and medication provided to her by her treating practitioners.[15] The Tribunal noted that there was no medical evidence that the sponsor was unable to work or attend to daily activities demonstrating that she had effective treatment with her treating practitioners and that she accessed support from these health professionals when required.[16] The Tribunal had regard to the sponsor’s extensive and independent travel history and was not satisfied that the sponsor’s reliance on the applicant required the presence of the applicant in the same physical location as the sponsor.[17] The Tribunal was also not satisfied that the sponsor’s medical evidence supported her claim that she ceased work in 2016 and had no independent source of income due to her psychological difficulties.[18]
[15] CB 243, [55]-[56]
[16] CB 244, [57]
[17] CB 244, [58]
[18] CB 244, [60]
The Tribunal accepted that if the applicant went offshore to lodge an offshore Partner visa application, the sponsor might find it difficult for a period of time. However, the Tribunal found that all applicants who apply for offshore Partner visas must wait while the visa application is processed and tolerate some level of physical separation, keeping in contact through electronic communication platforms. The Tribunal was satisfied that, on the basis of the applicant’s overseas travel, the applicant and sponsor were familiar with and readily accessed such electronic communication platforms.[19] The Tribunal noted the applicant’s evidence regarding the sponsor’s trips to China to visit relatives and found no “plausible reason” why the sponsor could not also maintain contact with the applicant during any period of separation.[20] The Tribunal concluded that any temporary period of separation whilst awaiting the outcome of the visa was not a compelling reason not to apply the Schedule 3 criteria.[21]
[19] CB 244, [61]
[20] CB 244, [62]
[21] CB 245, [63]
The Tribunal was not satisfied that the evidence indicated that the sponsor was unable to work and found the extent of her travel in recent times was indicative of her ability to function effectively outside of her home environment.[22] The Tribunal found no documentary evidence to support the applicant’s claim that he funded all of the sponsor’s overseas travel, that she no longer had a share in her café business and that he met her mortgage commitments. The Tribunal was also not convinced that the available evidence demonstrated the sponsor had no source of income or financial support other than provided to her by the applicant.[23] The Tribunal accepted there would be a financial impact on the sponsor and applicant as a consequence of the applicant returning to China to apply for a Partner visa, but was not satisfied that the financial circumstances of the applicant provided a compelling reason not to apply the Schedule 3 criteria.[24]
[22] CB 245, [65]
[23] CB 245, [66]
[24] CB 245, [67]
The Tribunal accepted the treatment provided by the sponsor’s psychologist and general practitioner had been effective in stabilising the sponsor’s anxiety symptoms and the extent of overseas travel by the sponsor indicated she could function effectively without regular direct contact from her health professionals. The Tribunal was not convinced the sponsor could not “function effectively” in China for a period of time while visiting the applicant in China.[25]
[25] CB 245, [68]
In relation to the applicant’s claim regarding the need to care for his two pets, the Tribunal found it was not been demonstrated why the sponsor’s family or friends of the parties could not assist in caring for the pets while the sponsor may be visiting the applicant, or why the sponsor could not care for their pets whilst she was in Australia.[26]
[26] CB 246, [69]
In relation to the applicant’s claim regarding his safety in China, the Tribunal found that the applicant did not provide any specific evidence as to any current risk to his safety and the Tribunal was not persuaded any such risk existed.[27] The Tribunal considered the applicant’s concern as to how he would financially support himself in China but was not satisfied that he had demonstrated why he could not draw support from either his or the sponsor’s relatives in China during the period his visa was being processed.[28]
[27] CB 246, [70]
[28] CB 246, [70]
Having considered the claims raised by the parties singularly and cumulatively, the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.[29] Accordingly, the Tribunal concluded that the applicant did not meet clause 820.211(2)(d)(ii), or any of the alternative criteria in clause 820.211(3)-(9). The Tribunal affirmed the decision under review.[30]
[29] CB 246, [71]
[30] CB 246, [72]-[75]
The present proceedings
These proceedings began with a show cause application filed on 15 May 2018. The applicant continues to rely on that application.
The application was technically defective in that the only relief sought was a writ of certiorari. With the applicant’s agreement I amended the application to also seek a writ of mandamus.
There are three grounds in the application:
1. I disagree with Immigration and AA' s decision as I believe that our defacto relationship have been genuine and lasting. AAT member has not comprehensively and fairly considered my review application and supporting evidence. Especially with my partner's medical condition and compelling situation.
2. AAT did not give a good and responsible consideration to my explanation at the hearing and evidence submitted to AAT.
3. AAT member did not well consideration that we have been in a long term relationship, my partner will be in a extremely difficult situation is I am forced to leave Australia.
(errors in original)
The application is supported by a short affidavit filed with it which I received as a submission. I have before me as evidence the court book filed on 19 July 2018 and an affidavit by Sharon Manpreet Sangha, made on 14 August 2018. Ms Sangha deposes as to a purported non-disclosure certificate and documents purportedly covered by that certificate which formed a confidential exhibit to the affidavit. The affidavit and the confidential exhibit were provided to the applicant and I have also examined the documents comprising the exhibit.
I invited oral submissions from the applicant this morning. I asked him to tell me in his own words what he considers is wrong with the Tribunal decision. The grounds advanced in the application are only generally particularised in relation to the first ground, and the second and third grounds are not particularised at all.
The applicant stated that his concern with the Tribunal’s decision was its consideration of the sponsor’s state of health. In the applicant’s view this was a compelling circumstance that should have been accepted by the Tribunal to waive the condition on the visa that would require him to apply from outside Australia. The applicant’s concern is directed to the Tribunal’s consideration of the issue of the sponsor’s health, from [53] to [60] of the Tribunal’s reasons.[31] While the applicant disagrees with the Tribunal’s reasoning on that issue, that is not enough to establish a viable argument of jurisdictional error.
[31] CB 243-244
At [58] of its reasons the Tribunal dealt with what it regarded as the sponsor’s extensive offshore travel, which in the Tribunal’s view detracted from the proposition that she was dependent upon the applicant. This brings into focus the purported non-disclosure certificate which the Tribunal dealt with at [35].[32] The Tribunal was, in my view, correct to find that the certificate was invalid and that the documents purportedly covered by it, which dealt specifically with the sponsor’s overseas travel, where not subject to any obligation of confidence, having been sourced from within the department’s own records. That information needed to be put to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act). The Tribunal met its obligations by proceeding in accordance with s.359AA of the Migration Act. In my view, the Tribunal dealt with the purported certificate properly and met its obligation of disclosure.
[32] CB 241
I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced, and the issue of the certificate.
Ground 1 states that the applicant’s relationship is “genuine and lasting” and the Tribunal did not “comprehensively and fairly” consider his review application and supporting evidence, especially the sponsor’s medical conditions and compelling situation. Ground 2 states that the Tribunal did not give a “good and responsible consideration” to his explanation at the hearing and evidence submitted. Ground 3 states that the Tribunal did not give “well consideration” to the fact that the applicant had been in a long term relationship and his partner would be in an “extremely difficult situation” if he was forced to leave Australia.
The applicant’s complaint that the Tribunal failed to consider his claims and evidence cannot succeed. As outlined above, the Tribunal made findings in respect of each of the applicant’s compelling reasons advanced in support of his application. Specifically, it made findings in relation to the length of the relationship,[33] the sponsor’s medical and mental health history,[34] separation of the parties[35] and financial difficulties the sponsor may experience if the applicant departed from Australia.[36] These findings were open on the available material and for the reasons that the Tribunal gave. It is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to reach the requisite state of satisfaction.[37] The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.[38] Accordingly, these “grounds” go no further than an impermissible invitation for the Court to review the merits of the Tribunal’s decision.[39]
[33] CB 242-CB 243, [46]-[51]
[34] CB 243, [53]-[60]
[35] CB 244, [61]-[63]
[36] CB 245, [64]-[67]
[37] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]
[38] Lee v Minister for Immigration [2005] FCA 464 at [27]
[39] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272
Section 376 non-disclosure certificate
The Tribunal decision records that it disclosed to the applicant the existence of a s.376 certificate issued by the Minister’s Department in respect of folios 74-82 of file BCC2016/2717066. The certificate was issued on the basis that the documents were given to the Minister or an officer of the Minister’s Department in confidence.[40] Those documents form Exhibit SMS-1 to the affidavit of Ms Sangha made on 14 August 2018.
[40] CB 241, [35]
The Tribunal informed the applicant that it considered the certificate and found that it was not valid as it referred to the information being provided to the Minister’s Department in confidence but it was not satisfied that this was the case.[41] The Tribunal found the information was accessible from the Minister’s Department’s records and was not something provided to the Minister’s Department in confidence by a third party. The Tribunal’s assessment about the deficiency in the certificate and its approach in determining that s.376 did not operate to prevent disclosure of those folios[42] is without error.
[41] CB 241, [35]
[42] CB 241, [35]
The applicant was given a copy of the s.376 certificate, informed of the contents of the documents the subject of the certificate (characterised as “consisting of [the sponsor’s] movement records of departures and returns to Australia”) and afforded an opportunity to comment on them.[43] As the Tribunal disclosed the s.376 certificate and substance of the documents the subject of the certificate, the applicant was not denied procedural fairness in respect of it.[44]
[43] CB 241, [35]
[44] AVO15 v Minister for Immigration [2017] FCA 566 at [84]-[90]
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 13 March 2019
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