Chan v Minister for Immigration

[2017] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2893

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – the Tribunal made findings that were open to the Tribunal – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl 820.211(2)(d)(ii) of Sch.2, Sch.3

Cases cited:

Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408

Applicant: ZI YI CHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2005 of 2017

Judgment of: Judge Street

Hearing date: 23 November 2017

Date of Last Submission: 23 November 2017

Delivered at: Sydney

Delivered on: 23 November 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones

Counsel for the Respondents: Ms A Carr

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2005 of 2017

ZI YI CHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 May 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. 

2. The applicant applied for the visa on 4 May 2015 on the basis of a relationship with a sponsor. On 2 June 2016 the delegate refused to grant the visa on the basis the visa applicant did not satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) because the applicant was not able to satisfy the criteria set out in Schedule 3 to the Regulations, namely 3001, 3003 and 3004 and that there were not compelling reasons to weigh the Schedule 3 criteria.

The Tribunal’s decision

1. The applicant was invited to attend a hearing before the Tribunal following the lodgement of the application for review. On 19 May 2017, the applicant appeared to give evidence and present arguments. The applicant was represented in the review by her registered migration agent. The Tribunal identified the background to the application for review and the applicant’s background. The Tribunal identified that the applicant arrived in Australia on 11 April 2012 on a visitor visa subclass 976 visa. On 18 May 2012 the applicant applied for a student visa subclass 570. On 28 June 2012 the applicant’s visitor visa was cancelled due to a breach of condition 8101 and she was granted a bridging visa pending the outcome of her student visa application. On 12 September 2012 the application for a student visa was refused and a review was sought before the Tribunal. The Tribunal affirmed the decision on 7 February 2014.

2. The Tribunal made reference to the submission provided to the Tribunal prior to the hearing. The Tribunal summarised the applicant’s evidence and that of the sponsor. The Tribunal correctly identified the issue in the present case was whether there were compelling reasons for not applying the Schedule 3 criteria given that the applicant was not the holder of a substantive visa at the time of application, or made the application within 28 days of holding a substantive visa.

3. The Tribunal identified the requirements of criterion 3001 of Schedule 3. The Tribunal found the applicant’s last substantive visa was held on 28 June 2012 and accordingly found the applicant did not meet the criteria under criterion 3001. It was in those circumstances that the Tribunal turned to the issue of whether the applicant met the Schedule 3 criteria and whether there were compelling reasons for not applying the criteria.

4. The Tribunal referred to the breadth of meaning of compelling reasons and also referred to the Department’s Procedures Advice Manual (PAM 3). The Tribunal noted correctly that it was not bound by Department policy and that the compelling reasons in each case is a question of fact having regard to all the circumstances of the case.

5. The Tribunal referred to the long-standing relationship and accepted that the parties have been married more than four years and the applicant is committed to the relationship with the sponsor. The Tribunal was not satisfied the existence of a long standing genuine spousal relationship constitutes a compelling reason for not applying the Schedule 3 criteria. The Tribunal noted that the existence of a genuine relationship is an essential requirement for the grant of the visa and in the circumstances of this particular case the Tribunal was not satisfied that satisfying an essential criteria of the grant of the visa amounts to a compelling reason.

6. The Tribunal referred to the effect of separation upon the sponsor. The Tribunal made express reference to the emotionally supportive relationship and accepted that the sponsor had a medical condition which may be exacerbated by stress and that separation of his partner may well trigger the condition. The Tribunal identified that it was mindful of the evidence of the sponsor himself that the condition had only recently been diagnosed and appeared to be responding to medication. The Tribunal found there was no evidence that treatment was not and would not in the foreseeable future be available to the sponsor. It was in these circumstances that the Tribunal found that the emotional difficulties and physical difficulties described that may arise from the sponsor during separation while waiting for a visa application to be processed is a compelling reason not to apply the Schedule 3 criteria.

7. The Tribunal made reference to the effect of separation on the relationship. The Tribunal accepted that the separation will present some difficulties for the parties but did not consider that the subsequent difficulties that may arise for the parties during a separation were difficulties that were not reasonably foreseeable at the time of entering the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa by which the Tribunal was referring to not having a substantive visa. The Tribunal was not persuaded on the evidence that the effects of separation on the relationship were compelling reasons for not applying the Schedule 3 criteria.

8. The Tribunal made reference to the separation impact on family planning and was not persuaded on the evidence in this case that the effects of separation on the parties family planning is a compelling reason not to apply the Schedule 3 criteria.

9. The Tribunal considered all of the issues and was not satisfied that these matters separately and cumulatively are compelling reasons to not apply the Schedule 3 criteria. It was in these circumstances that the Tribunal was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found the applicant did not meet cl 820.211(2)(d)(ii) of the Regulations and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The Tribunal erred by misdirecting itself as to the meaning of the term “compelling reasons” in cl 820.212(d)(ii) of Schedule 2 to the Migration Regulations 1994.

   Particulars

   (a) In considering the operation of clause 820.211(2)(d)(ii), the Tribunal erroneously concluded that the mere existence of a long term relationship, on its own and without more, would not be sufficient to establish compelling reasons for not applying the criteria in Schedule 3. There was no statutory basis for the Tribunal to reach the conclusion that the existence of a long term relationship on its own could not give rise to a compelling reason for not applying that requirement.

   (b) The Tribunal accepted that the sponsor's medical condition could be “triggered” by a separation from the Applicant but said that there was no evidence that treatment would not be available. The Tribunal failed to consider whether the condition, even if treatable, would cause suffering to the sponsor that could be considered a compelling reason for not applying the Schedule 3 criteria.

   (c) The Tribunal's finding that the difficulties that could arise for the couple during a separation were “reasonably foreseeable at the time of entering the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa” was not relevant in any way to a consideration of whether those difficulties could amount to compelling reasons for not applying the Schedule 3 criteria.

2. Mr Jones, solicitor for the applicant submitted that the policy identified in respect of a long term relationship in the explanatory memorandum was a matter that should be characterised as a policy requirement that the Tribunal must take into account. No submission was advanced to the Tribunal that the explanatory statement had to be taken into account. The Tribunal correctly identified the PAM3 and that the policy was not itself binding. The reference to the explanatory memorandum does not give rise to there being a mandatory criteria that the Tribunal had to take into account.  No jurisdictional error is made out on this basis.

Ground 1(a)

1. In relation to ground 1(a), the existence of a long-term relationship does not of itself mean that the Tribunal must find that there are compelling reasons for not applying the Schedule 3 criteria. The finding made by the Tribunal in the circumstances of the present case was open to the Tribunal on the material before the Tribunal. Accordingly, no jurisdictional error as alleged in ground 1(a) is made out.

Ground 1(b)

1. In relation to ground 1(b), Mr Jones submitted that the Tribunal had not considered whether the condition, even if treatable, would cause suffering to the sponsor that could be considered a compelling reason.  On a fair reading of the Tribunal’s reasons, the Tribunal took into account the sponsor’s condition and the impact of separation in respect of that condition. No jurisdictional error is made out by ground 1(b). 

Ground 1(c)

1. In relation to ground 1(c), Mr Jones, solicitor for the applicant took the Court to the reasoning of the learned Whitlam J in Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408 and in particular at [8] and submitted that the Tribunal in the present case had introduced a gloss to the criteria requiring that the circumstances could not have been foreseen. The Tribunal’s reasons are not to be read with a keen eye for error. Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408 is distinguishable given the reasons of the Tribunal in that particular case which was summarised at [5] and highlighted in bold by the learned judge.

2. In the present case, I do not accept that the Tribunal’s reference to the circumstances that the separation may have been foreseeable as a result of the applicant not holding a substantive visa was introducing a requirement or gloss to the criteria. Rather, the Tribunal was making a finding of fact that was open to the Tribunal in its consideration of whether the circumstances met the relevant criteria. No jurisdictional error as alleged in ground 1(c) is made out.

3. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 December 2017