Chan v Minister for Immigration
[2015] FCCA 47
•12 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 47 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – whether the Tribunal erred in proceeding on the basis that a de facto relationship requires co-habitation considered – whether the Tribunal erred in exercising its discretion to waive Schedule 3 criteria considered – whether the Tribunal misconstrued part of the applicant’s claim considered – no jurisdictional error. |
| Legislation: Family Law Act 1975 (Cth), s.4AA Migration Act 1958 (Cth), s.5CB Migration Regulations 1994 (Cth) |
| Berenguel v Minister for Immigration (2010) 264 ALR 417 Phan v Minister for Immigration & Anor [2007] FMCA 88 |
| Applicant: | YUK PING CHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 103 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Chen Shan Lawyers |
| Counsel for the Respondents: | Mr J D Smith, SC |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 26 November 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 103 of 2014
| YUK PING CHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal) made on 17 December 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Ms Chan, a temporary partner visa.
Ms Chan is a citizen of the People’s Republic of China who formerly resided in the Hong Kong special administrative region[1]. She applied for the visa on 15 July 2011 on the basis of her relationship with her sponsor, an Australian citizen named Lawrence James Gordon.
[1] at [4] of the Tribunal’s decision (court book (CB) 266). Ms Chan is incorrectly described as being a “citizen of Hong Kong”
The following statement of background facts is derived from the submissions of the parties. A chronology of relevant events is as follows:
a)3 March 2010 – Ms Chan entered Australia on a three month visitor’s visa[2];
[2] CB 197, 266 [4]
b)April 2010 – Ms Chan met Mr Gordon when working at a brothel. At that stage Mr Gordon was a client[3];
[3] CB 116 [2]
c)6 May 2010 – Ms Chan was granted a student visa[4];
d)19 June 2010 – Ms Chan was arrested whilst working in a brothel. She was subsequently convicted of drug offences and imprisoned for 12 months[5]. She claimed that Mr Gordon visited her weekly whilst she was incarcerated;
e)18 August 2010 – Ms Chan’s student visa was cancelled because Ms Chan had failed to attend classes, she being in gaol at the time;
f)19 June 2011 – upon release from prison Ms Chan moved into Mr Gordon’s home at Guildford[6];
g)15 July 2011 – the application for a subclass 820 visa was filed. It was claimed that Ms Chan was in a de facto relationship with Mr Gordon[7];
h)December 2011 – the relationship broke down due, Ms Chan claimed, to family violence[8];
i)January 2012 or thereabouts – Mr Gordon (presumably) sent an unsigned and undated letter to the Minister’s Department withdrawing his sponsorship of Ms Chan[9];
j)2 February 2012 – the Minister’s Department sent a letter to Ms Chan stating its information that the relationship had broken down and inviting a response;
k)6 February 2012 - Ms Chan confirmed that the relationship had broken down because of family violence of which she was the victim;
l)26 April 2013 – Ms Chan’s new solicitors forwarded some of the documents required to be lodged by regulation 1.23 of the Migration Regulations 1994 (Cth) (Regulations) to demonstrate family violence[10].
[4] CB 266 [4]
[5] CB 116 [3]
[6] CB 4, 117 [6]
[7] CB 1, 26
[8] CB 117-120
[9] CB 65
[10] CB 114-131, 139
The delegate made her decision on 25 June 2013[11]. She was not satisfied that the claimed de facto relationship ever existed[12]. The application for review was lodged on 8 June 2013[13].
[11] CB 151-156
[12] CB 155
[13] CB 167-177
Prior to the Tribunal hearing Ms Chan’s solicitors submitted two statements from people attesting to the relationship which had existed between Ms Chan and Mr Gordon and the breakdown of that relationship[14].
[14] CB 239-241; 242-245
At hearing the Tribunal identified the issues as[15]:
a)whether, at the date of the application, the parties were in a genuine and continuing relationship as defined in s.5CB of the Migration Act 1958 (Cth) (Migration Act) and regulation 1.09A;
b)whether, at the date of the application the parties had been in a de facto relationship for at least the period of 12 months immediately preceding the date of the application and if not whether there were compassionate and compelling circumstances for the grant of the visa, which went to regulation 2.03A;
c)whether Ms Chan satisfied criteria 3001, 3003 and 3004 and if not whether there were compelling reasons for not applying those criteria[16].
[15] at CB 268 [18]
[16] CB 268-9 [19]
It also stated that if Ms Chan did not meet the time of application criteria then it would not be necessary to consider the claims that she had suffered family violence.
The Tribunal[17] recorded Ms Chan’s evidence of her being a drug user and having been convicted of supplying illegal drugs, of her previous marriage to a man in Hong Kong and the fact that she had a son, and of the circumstances in which she met Mr Gordon. Ms Chan stated that Mr Gordon had visited her every week in gaol and that when released she went to live at his house, and this was the first time they lived together[18].
[17] at CB 269
[18] CB 269 [25]-[26]
When invited to provide any compassionate or compelling reasons as to why the requirement for the relationship to have been in existence for 12 months prior to the filing of the application should not be required, Ms Chan is recorded as saying, amongst other things, that she would not have divorced her husband in Hong Kong if she had not been expecting to be in a relationship with her sponsor, and that she had contacted him in August or September 2010 to say that she wanted a divorce[19].
[19] CB 269-70 [28]
The Tribunal moved on to the fact that Ms Chan last held a substantive visa on 18 August 2010, and that the partner visa application was not filed until 15 July 2011. This meant that it was filed more than 28 days after she last held a substantive visa, and that meant that she could not meet the Schedule 3 criteria unless she could show compelling reasons for not applying the criteria[20]. Her responses were that Mr Gordon had started abusing her two weeks after she was released from gaol and she had suffered harm because of him, that she feared her former husband in Hong Kong, and that a compelling reason for the delay was that she was in gaol at the relevant time.
[20] CB 270 [31]
The Tribunal’s reasons
After summarising the legal requirements and finding that Ms Chan did not meet criterion 3001[21], the Tribunal noted that one of the arguments put to it in support of the contention that there were compelling circumstances for not applying the Schedule 3 criteria was that she was in prison between 19 June 2010 and 19 June 2011. The Tribunal stated that, in effect, what this argument claims is that if she were not in gaol she would have been able to file the application earlier, within the requisite 28 days[22]. That, in the Tribunal’s view, required consideration as to when the de facto relationship commenced.
[21] at CB 271 [41]
[22] CB 272 [46]
In that respect the Tribunal noted the evidence and submission that Mr Gordon visited Ms Chan in gaol and that they would talk about their plans to be together for the future, which included living together and getting married, but that they could only act on these plans after Ms Chan was released. The Tribunal did not accept that these discussions formed a part of the de facto relationship, and found that it was only when the couple act on those plans and actually begin living together that the relationship starts[23].
[23] CB 273 [51]
Ms Chan argued that she had acted on an intention to marry Mr Gordon by asking her husband in Hong Kong for a divorce. The Tribunal reasoned that the earliest date that Ms Chan could claim to be in a de facto relationship on this basis was August or September 2010, which the Tribunal observed was more than 28 days after her last substantive visa expired, but less than 12 months before her application for the partner visa[24].
[24] CB 273 [52]-[53]
Having considered the evidence, the Tribunal found that the earliest date that the de facto relationship commenced was 19 June 2011, which was the date of Ms Chan’s release from prison[25].
[25] CB 273 [54]
Having so decided, the Tribunal moved on to consider whether there were “compassionate and compelling circumstances” for the purposes of the Schedule 3 criteria. It listed five reasons given by Ms Chan[26] and dismissed them; the reason being, that the Schedule 3 criteria apply at the time of the application, and, so the Tribunal opined, the stated matters did not relate to the time of the application[27]. It did not in any event accept that the stated matters were “compassionate and compelling circumstances” for the purposes of the Schedule 3 criteria[28].
[26] at CB 74 [58]
[27] CB 274 [59]-[60]
[28] CB 274-5 [62]-[65]
The Tribunal then moved on to the question of “compassionate and compelling circumstances” in the context of regulation 2.03A. It found that as the couple had only been together for a month prior to filing the visa application Ms Chan did not meet that provision. It did not accept any of the circumstances put forward as “compassionate and compelling circumstances” for the grant of the visa[29].
[29] CB 275 [67]-[68]
The judicial review application
The present proceedings began with a show cause application filed on 15 January 2014. Ms Chan now relies upon an amended application filed in court by leave on 26 November 2014. There are three grounds in the application:
1. The Tribunal committed jurisdictional error in its consideration of Migration Regulation 2.03A.
Particulars
(a) The Tribunal misconstrued and misapplied section 5CB of the Migration Act, and failed to take the requirements of that section into account in deciding the date at which the applicant’s de facto relationship commenced.
Further particulars
(i) The Tribunal stated, as a universal proposition which was inconsistent with s.5CB, that a de facto relationship commences when two people start living together.
(b) This error materially affected its consideration of Reg 2.03A in that it had the error not been made the Tribunal may have concluded that the applicant’s de facto relationship commenced at least 12 months prior to the date of the visa application.
2. The Tribunal erred in finding that it was required to look at the Schedule 3 criteria and any compelling reasons for not applying those criteria as at the date of the application.
Particulars
(a) Properly construed cl. 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations which incorporated Schedule 3 criteria was to be applied either at the time of the application or the time of the decision.
3. The Tribunal erred in failing to lawfully consider and address the applicant’s claim that she would not have divorced her husband in Hong Kong were it not for her expectation that her relationship with her sponsor would be permanent.
I have before me as evidence the court book filed on 10 March 2014.
Ms Chan and the Minister made both oral and written submissions based upon the application as amended.
The legislative scheme
Section 5CB of the Migration Act relevantly states:
5CB De facto partner
De facto partners
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b)the relationship between them is genuine and continuing; and
(c)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
Migration Regulation 1.09A sets out the factors to be considered in determining whether one or more of the conditions in s.5CB(2)(a), (b), (c) and (d) exist.
Migration Regulation 2.03A(3) states relevantly that the Minister must be satisfied that the de facto relationship has existed for 12 months before the date of the visa application unless the person can establish compassionate and compelling circumstances for the grant of the visa.
Migration Regulations, Schedule 2, Part 820 which is stated to be a time of application criterion: states relevantly:
820.21 Criteria to be satisfied at time of application
820.211(1) The applicant:
(a)is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) ...
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18 — by the spouse or de facto partner; or
(ii) ... and
(d)in the case of an applicant who is not the holder of a substantive visa — either:
(i) the applicant:
(A) ...
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Schedule 3, Criteria 3001, and 3004 (Criterion 3003 is not relevant), as follows:
3001(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) ...; or
(b) ...; or
(c) if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)...;
whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
...
3004 If the applicant:
(a)ceased to hold a substantive ... visa on or after 1 September 1994; or
(b)...;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f) either:
(i)in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
Consideration
The legislative scheme bearing upon the Tribunal’s decision is somewhat complex.
The only subclass of the Class UK visa that existed at the relevant time was subclass 820. The criteria for the grant of that subclass of visa were contained in item 820 of Schedule 2 to the Regulations. Relevantly, those criteria required the applicant to be the de facto partner of an Australian citizen (clause 820.211(2)(a)) and to satisfy criteria 3001, 3003 and 3004 in Schedule 3 to the Regulations unless “the Minister is satisfied that there are compelling reasons for not applying those criteria.” Criterion 3001 required the visa application to have been made within 28 days of the expiry of the last day when the applicant held a substantive visa.
As already noted, the visa application here was made long after the last day on which Ms Chan last held a substantive visa. That meant that an issue for the Tribunal was whether it was satisfied that there were compelling reasons not to apply criteria 3001.
In considering the visa application, two facts were of particular importance to the Tribunal. The first was that Ms Chan’s visa application was made on 15 July 2011 which was more than 28 days after the expiry of her last substantive visa[30]. Secondly, Ms Chan and Mr Gordon had not lived together before Ms Chan was released from prison on 19 June 2011.
[30] on 18 August 2010
These facts meant that in order to succeed in a case before the Tribunal, Ms Chan had first to persuade the Tribunal that there were compelling reasons for granting the visa notwithstanding that Ms Chan had not complied with criterion 3001 in the Schedule 3 criteria. Secondly, Ms Chan had to persuade the Tribunal that she and Mr Gordon had been in a de facto relationship prior to her visa application (notwithstanding that they had not then lived together) or that there were compassionate and compelling circumstances for the grant of the visa if she was unable to establish the prior subsistence of a de facto relationship.
If Ms Chan was unable to persuade the Tribunal on either of those issues then it necessarily followed that she would be unsuccessful. Although the Tribunal, in its reasons, dealt with both questions, it was only necessary for it to deal with the first (the 28 day issue) because it declined to waive the requirement. The Tribunal dealt with the second question (relating to the application of regulation 2.03A(3)) briefly at [67]-[68] of its reasons[31]. Nevertheless, and somewhat confusingly, the Tribunal considered all of the arguments advanced by Ms Chan in relation to compelling circumstances (for the purposes of clause 820.211(d)(ii) also for the purposes of considering regulation 2.03A(3)). This was apparent both from the terms of [68] of the Tribunal’s reasons as well as the heading in italics before [56] of the Tribunal’s reasons. This is not necessarily an error on the Tribunal’s part as factors that may be relevant to one discretion may also be relevant to the other. A mixing of the two, however, is apt to cause confusion, as there are in fact three potentially relevant waiver provisions: the first relates to waiver of the 12 month requirement in regulation 2.03A(3) of the Regulations; the second relates to the waiver of the Schedule 3 criteria (the 28 days requirement); and the third (not relevant here) relates to the clause 3004 criteria. A circumstance may be compassionate but not compelling and there is a risk that by considering circumstances for multiple discretionary purposes, the Tribunal may fall into error. No such error is asserted here.
Ground 1 – did the Tribunal misconstrue or misapply s.5CB of the Migration Act in its consideration of migration regulation 2.03A?
[31] CB 275
Ms Chan complains that the Tribunal proceeded on the basis that a de facto relationship does not exist until a couple act on their plans and actually begin living together. Ms Chan contends that the Tribunal’s interpretation adds an “unjustified gloss” to s.5CB(2).
I accept that, for the purposes of the Family Law Act 1975 (Cth) (Family Law Act), cohabitation is not a condition precedent for the existence of a de facto relationship[32]. However, for the purposes of the Migration Act and Regulations, cohabitation is a pre-requisite for the existence of a de facto relationship. The definition of a “de facto relationship” in s.5CB of the Migration Act relevantly requires that the parties to the relationship either:
a)live together; or
b)do not live separately and apart on a permanent basis.
[32] See the definition of “de facto relationship” in s.4AA of the Family Law Act
Obviously, the two limbs must be read disjunctively. Cohabitation is plainly an essential element of the first limb. It has been found also by this Court to be a necessary element of the second limb. In Minister for Immigration & Anor v SZOXP[33] Judge Emmett accepted that a couple, if separated and living apart, may not be in a permanent state of separation for the purposes of the second limb. Her Honour stated that the legislation contemplates that a couple who are living together may be separated temporarily for many reasons. However, in such circumstances, it must be their intention to “resume” cohabitation. If a couple have never lived together, they cannot “resume” cohabitation. It will also be a matter of speculation whether a mutually expressed intention to commence cohabitation at some future time will be effected. The Migration Act requires more certainty than that. It requires that the parties are either cohabiting or, although currently living separately, have cohabited in the past and will resume cohabiting.
[33] (2014) 285 FLR 384 at [34]
I agree with the interpretation applied by Judge Emmett in SZOXP and I apply it in this case. It follows that Ground 1 fails.
Ground 2 – did the Tribunal misapply or misconstrue clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations?
Ms Chan contends that the Tribunal was wrong in stating at [60] of its reasons[34] that it was required to look at the Schedule 3 criteria and any compelling reasons for not applying those criteria as at the date of the visa application. She relies upon the decision of the High Court in Berenguel v Minister for Immigration[35]. The relevant Schedule 3 criteria required that the current visa application be made within 28 days of Ms Chan last holding a substantive visa. She contends that there is no obvious reason why compelling reasons for not applying those criteria could not arise after the visa application was lodged[36].
[34] CB 274
[35] (2010) 264 ALR 417
[36] Ms Chan also relies upon the decision of the High Court in Shahi v Minister for Immigration (2011) 86 ALJR 162
In my opinion, the present circumstances can be distinguished from those in Berenguel and Shahi. Berenguel concerns the proper construction of regulation 1.15B as it then stood. In my opinion, there is a critical distinction between a requirement that an applicant demonstrate competent English (which the High Court found in Berenguel might be demonstrated up to the time of decision) and a discretion to waive a visa criterion requiring an application to be made within 28 days of the last substantive visa ceasing. It is logical to expect that the circumstances justifying the waiver of the condition would exist at the time that the visa application was made. The issue was considered by Wilcox J in Boakye-Danquah v Minister for Immigration[37]. At [30]-[31] his Honour considered the background to the introduction to the Regulations:
[37] [2002] FCA 438
During the hearing before me, reference was made to the circumstances surrounding the introduction into the Migration Regulations of the concluding words of sub-para (ii) of cl 820.211(2)(d). Mr Osei referred to three media releases issued by the Department, dated 25 January 1996, 2 February 1996 and 30 May 1996. The last of these documents referred to amendments to the regulations intended to commence on 1 August 1996.
Statutory Rule No 75 of 1996 amended Schedule 2 of the Migration Regulations in various respects. One of the amendments, made operative from 1 August 1996, was the insertion of a new para (d) in subcl 820.211(2). The new paragraph was in substantially the same form as the present para (d). It was explained in an Explanatory Memorandum concerning the Statutory Rule issued by the Minister for Immigration and Multicultural Affairs in this way:
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:
-where there are Australian-citizen children from the relationship; or
-where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
At [33] his Honour said:
Against this background, it is clear that the criterion was intended to be satisfied as at the time of application - as cl 820.211 itself requires - and only as at that date. The criterion is concerned with the circumstances in which an application is made. The decision-maker has to make a judgment about those circumstances, but that is all. There was obviously no intention that an applicant be required also to demonstrate compelling reasons arising out of the circumstances applying at the date of decision.
I regard Boakye-Danquah as binding authority, notwithstanding the decisions of the High Court in Berenguel and Shahi. Ms Chan submits that Boakye-Danquah was wrongly decided but that submission cannot assist her in this Court. I note that the decision in Boakye-Danquah has previously been applied in this Court[38].
[38] See Phan v Minister for Immigration & Anor [2007] FMCA 88 at [44]
Ground 2 fails.
Ground 3 – did the Tribunal fail to lawfully consider and address Ms Chan’s claim that she would not have divorced her husband in Hong Kong were it not for her expectation that her relationship with her sponsor would be permanent?
At [65] the Tribunal said[39]:
The Tribunal has also taken into account the applicant’s claim that she wouldn’t have divorced her husband if she didn’t know the sponsor would remain in a relationship with her and that it is shameful to be divorced in China. The Tribunal does not accept these claims as providing any compelling reasons for not applying the schedule 3 criteria. Divorce is not an uncommon event in China or Hong Kong and little or no stigma is attached to a person being divorced. The Tribunal is not satisfied that the fact the applicant decided to divorce her husband by consent provides any compelling reason for not applying the schedule 3 criteria.
[39] CB 275
Ms Chan complains that the Tribunal did not engage with her claim. She asserts that she was putting to the Tribunal that she would have remained married to the father of her child, with the security that that entailed, were she to return to Hong Kong, had she not believed that her relationship with Mr Gordon would be permanent.
Ms Chan’s first difficulty is that, at the time of her visa application, she was not divorced[40]. Thus, this ground cannot succeed because of the failure of Ground 2.
[40] CB 117 [6]
In any event, I accept the Minister’s submissions on this ground.
Contrary to Ms Chan’s submission, it is not at all clear that she was putting that she would have remained married to the father of her child with the security that that entailed had it not been for her relationship with Mr Gordon. The claims relating to Ms Chan’s husband were, first, that it would be dangerous for her to return to Hong Kong because her husband was angry with her[41]. While that claim could have arisen at the time of application and amounted to a compelling reason, the Tribunal rejected that claim on a factual basis[42]. Ms Chan does not take issue with that.
[41] CB 270 [33]
[42] CB 275 [64]
The second way in which the claim was framed was described by the Tribunal at [65][43]:
The Tribunal has also taken into account the applicant’s claim that she wouldn’t have divorced her husband if she didn’t know the sponsor would remain in a relationship with her and that it is shameful to be divorced in China. (emphasis added)
[43] CB 275
The Tribunal dealt with the claim on the basis that the last phrase (concerning the shame of divorce) was the compelling reason. That is understandable and is an available meaning of the sentence as a whole. Ms Chan’s argument requires the sentence to be read as though the conjunction “and” meant that there was an additional claim. That is not obvious. It is only claims that obviously arise on the material that must, at the risk of jurisdictional error, be considered by the Tribunal[44]. The claim now identified by Ms Chan does not answer that description.
[44] NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1
I reject Ground 3.
Conclusion
Ms Chan has failed to demonstrate any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 February 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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