Chao v Minister for Immigration

[2017] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAO v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2449

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding that the applicant was not in a de facto relationship at the time of application – whether the Tribunal failed to consider the applicant’s evidence or acted unreasonably considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.5CB

Migration Regulations 1994 (Cth)

Cases cited:

Lee v Minister for Immigration [2005] FCA 464

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: KUO TUNG CHAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 800 of 2016

Judgment of: Judge Driver

Hearing date: 9 October 2017

Delivered at: Sydney

Delivered on: 3 November 2017

REPRESENTATION

Solicitors for the Applicant: Mr R Turner of Turner Coulson Immigration Lawyers

Solicitors for the Respondents: Ms D Watson of Australian Government Solicitor

ORDERS

1. The application as amended in court on 9 October 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 800 of 2016

KUO TUNG CHAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant, Mr Chao, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 March 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Chao a temporary partner visa. 

2. The following statement of background facts is derived from the submissions of the parties. 

3. Mr Chao, a Taiwanese national, arrived in Australia on 29 November 1992 as the holder of a student visa.

4. On 22 February 2013, Mr Chao lodged his application for the visa on the basis that he was in a de facto relationship with an Australian citizen, Ms Ting Ting Chen (the sponsor).[1]

   [1] Court Book (CB) 5

5. By way of letters received by the Minister’s Department on 28 January 2014 and 27 February 2014, Ms Chen informed the Minister’s Department that she was no longer in a relationship with Mr Chao.[2]  By letter dated 15 April 2014, the Minister’s Department invited Mr Chao to comment on the alleged relationship breakdown.[3]

   [2] CB 149 and 168

   [3] CB 170

6. On 20 June 2014, the delegate refused to grant the visa.[4] The delegate was satisfied that Mr Chao was in a de facto relationship as defined by s.5CB of the Migration Act 1958 (Cth) (Migration Act) at the time of application, and that Mr Chao therefore met clause 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). However, the delegate found that Mr Chao was no longer the de facto partner of Ms Chen and therefore did not meet clause 820.221(1)(a) of the same Schedule.

   [4] CB 188

7. On 10 July 2014, Mr Chao sought review of the delegate’s decision by the Tribunal.[5]  Mr Chao accepted that his relationship with Ms Chen had concluded at the end of 2013. However, Mr Chao claimed to have suffered family violence at the hands of Ms Chen.  In support of that claim, Mr Chao provided the following documents:

   a)a statutory declaration dated 8 February 2016 annexing a written statement dated “February 2016”;[6]

   b)a statutory declaration dated 5 August 2015 from Dr Stephen Hook, a psychiatrist, annexing a medico-legal report which concluded that: [7]

   Whilst Mr Chao was not physically intimidated or threatened, the reported conduct of his ex-partner was experienced as emotionally abusive by him. …[After the relationship], he has gone on to experience significant depressive and anxiety symptoms which are consistent with an experience of emotional abuse in the context of this relationship;

   c)a statutory declaration dated 8 February 2016 from Myong De Conceicao, a registered nurse, annexing a report which concluded that:[8]

   Based on result of the test and his clinical presentation… [Mr Chao] is suffering depression, anxiety and stress disorder which were caused by his experiences and encountering of psychological family violence from the conduct of alleged perpetrator Miss Chen…

   [5] CB 203

   [6] CB 283

   [7] CB 223

   [8] CB 294

Tribunal’s decision

1. The Tribunal affirmed the delegate’s decision on 9 March 2016.[9]

   [9] CB 321

2. The Tribunal considered that the issue for determination was whether Mr Chao was, at the time of application, the de facto partner of Ms Chen for the purposes of s.5CB of the Migration Act.[10]

   [10] CB 322 at [8], 325 at [26]

3. The Tribunal had regard to the parties’ financial relationship, the nature of their household, the social aspects of their relationship and the nature of their commitment to each other.[11]  It then considered the claims and evidence before it and found that the parties “shared a relationship of girlfriend and boyfriend and that relationship had not progressed into a de facto relationship.”[12]  In particular, the Tribunal noted that there was no evidence of pooling or combining of their finances, there was inconsistent evidence as to their living arrangements, and the supportive statements were of a general nature.

   [11] CB 325 at [28]

   [12] CB 326-327 at [36]

4. In light of those findings, the Tribunal was not satisfied that the parties were in a de facto relationship for the purposes of s.5CB of the Migration Act at the time of application. The Tribunal therefore concluded that Mr Chao did not meet clause 820.211 of the Regulations.[13]

   [13] CB 327 at [37]

5. The Tribunal referred to Mr Chao’s claims of family violence and the statutory declarations provided in support of those claims. However, as the Tribunal had found that the parties were never in a de facto relationship, it did not go on to consider those claims.[14]

   [14] CB 327 at [38]

Current proceedings

1. These proceedings began with a show cause application filed on 7 April 2016.  Mr Chao now relies upon an amended application tendered in court by leave at the trial of this matter on 9 October 2017.  There is one ground in that application:

   1.      The Tribunal failed to carry out its statutory duty.

   Particulars

   a. The Tribunal had an obligation to review a valid application (Migration Act 1958 s.348) that complies with substantial justice and acts in accordance with the merits of the case (The Act s.353).

   b. Such a review must be a genuine review exercise in accordance with the above rules.

   c. In this case the Tribunal failed to carry out its statutory duty by:

   i.      Failing to give genuine and realistic consideration to the evidence of the Applicant;

   ii.      Failing to give any consideration to the evidence of the Applicant relating to domestic violence;

   iii.     Failing to act reasonably.

2. I have before me as evidence the book of relevant documents filed on 20 May 2016.  Both Mr Chao and the Minister filed written submissions and made oral submissions through their representatives at the trial of the matter.

Consideration

1. Mr Chao makes two complaints about the Tribunal decision.  He first asserts that the Tribunal failed to give proper consideration to his evidence of a de facto relationship at the time of his visa application.  Secondly, he asserts that the Tribunal acted unreasonably.

2. In relation to both complaints, it is important to view the Tribunal decision in its proper context.  First, the Tribunal was dealing with the matter in light of the delegate’s decision that the parties were not in a genuine de facto relationship at the time of decision.  The delegate’s decision was made following the withdrawal of sponsorship and the failure by Mr Chao to respond to an invitation to comment on that.  The issue of family violence was raised for the first time on merits review.  Secondly, Mr Chao places significance on two statutory declarations reproduced at CB 80 and CB 85.  As explained in oral argument by the solicitor for Minister, these were necessary for the partner visa application because Mr Chao had previously been refused a student visa.  They were not, however, sufficient in themselves to necessarily establish a de facto relationship and the content of them needed to be considered by the Tribunal in order to satisfy itself that Mr Chao had been in a genuine de facto relationship with his former sponsor at the time of the visa application. 

3. Further, Mr Chao places significance on the relationship certificate reproduced at CB 70.  Again, as explained in oral argument, this was a necessary document to support the visa application because Mr Chao and the sponsor had been in their asserted de facto relationship for only a short time when the visa application was lodged, and the certificate overcame the need to establish a relationship of at least 12 months.  It was not, however, sufficient in itself to compel a decision as to the existence of a de facto relationship at the time of application.  The certificate needed to be weighed with the other available evidence.

4. In relation to the certificate, Mr Chao takes issue with the Tribunal’s reasons at [33] where it stated:[15]

   The Tribunal is not satisfied that the parties Relationship Certificate supports the parties being in a de-facto relationship, as its issue does not require evidence of cohabitation or evidence that the relationship is genuine and continuing.

   [15] CB 326

5. On its face, the Tribunal’s wording in that paragraph appears somewhat dismissive, but it is plain from what follows at [35] and [36] that the certificate was weighed with the other available evidence. 

6. Mr Chao also takes issue with the Tribunal’s reasoning at [31][16] where it dealt with the third party statutory declarations:

   Third party statutory declarations do not give evidence about the nature of the parties’ relationship rather they are general in nature.  Mr Trieu stated that he heard from his wife that her brother has a girlfriend and on a Saturday in 2012 they met.  Ms Lee, who is the mother of the applicant, stated that she met Ms Chen in March 2012.  In her statement stated 13 February 2016, she provided information that the parties lived with her from December 2012 until December 2013 and as she has spare time all the parties need to do is to clean up their room; that the sponsor helps her fold the clothes and the parties go shopping on the weekends and the applicant cooks.  She continued that the parties stay in their room after dinner and watch movies or go on the internet.  In a statement from Irene Hui Kwan Lee, dated 15 February 2016, she stated that she knew both the sponsor and applicant previously; that in 2012 she ran into them in China Town and the applicant told her he was in a relationship with the sponsor; that the parties registered their de facto relationship in 2013 and that she would be in contact from time to time; that Mr Chao stated that he would buy a property and the parties would get married.  Ms Chen has not provided any third party evidence from family in support of the parties’ relationship.

   [16] CB 326

7. Mr Chao contends that the statutory declarations are “strong evidence that the relationship is genuine”.[17]  In my opinion, that is simply an expression of disagreement with the Tribunal’s assessment of the weight and value of the declarations. 

   [17] applicant’s submissions at [12]

8. I otherwise agree with the Minister’s submissions concerning the ground of review.

Failure to consider evidence

1. Mr Chao contends that the Tribunal erred in its consideration of the statutory declarations and the relationship certificate provided in support of the parties’ relationship. In his written submissions, Mr Chao submits that:

   a)as the statutory declarations were affirmed, it is strong evidence that the parties’ relationship was genuine;[18]

   b)the Tribunal’s reasoning at [33][19] in relation to the relationship certificate would thwart the intention of the legislation, namely “to give equality between marriage and de facto and same sex relationship[s]”;[20] and

   c)the Tribunal failed to have regard to the evidence of “domestic violence”[21], and that evidence necessarily means that there was a domestic relationship, as there cannot be domestic violence without a domestic relationship.[22]

   [18] applicant’s submissions at [12]

   [19] CB 326

   [20] applicant’s submissions at [13]

   [21] now referred to as “family violence”

   [22] applicant’s submissions at at [14]

2. In relation to the statutory declarations, the Tribunal is entitled to accept, reject or give such weight to any evidence as it considers appropriate in the circumstances of the review.[23]  The Tribunal set out and considered the information contained in the statutory declarations provided in support of the parties’ relationship.  It concluded that the evidence was general in nature.[24]  The Tribunal was entitled to weigh the forensic value of the evidence provided.  No error arises from the Tribunal’s consideration of the statutory declarations.

   [23] Lee v Minister for Immigration [2005] FCA 464 at [27]

   [24] CB 326 at [31]

3. In relation to the relationship certificate, the Tribunal’s reasons need to be read as a whole.  The Tribunal noted that the parties gave evidence that their de facto relationship began in December 2012 and that they registered their relationship on 25 January 2013.[25]  The Tribunal further noted that the parties’ relationship certificate did not support the parties being in a de facto relationship.[26]  Finally, having regard to the chronology, breakdown in the relationship, registration, and application for the visa, the Tribunal concluded that the parties were not in a de facto relationship.  Those findings were open to it on the material, and no jurisdictional error is disclosed.

   [25] CB 323 at [11]

   [26] CB 326 at [33]

4. For completeness, and to the extent that Mr Chao submits that the Tribunal abrogated the intention of Parliament, it is clear from the Tribunal’s reasons that its consideration was limited to the issue of a relationship certificate in the present matter, and that it was not making findings about relationship certificates more broadly.

5. Finally, in relation to the evidence of family violence, though not clear, I understand Mr Chao’s complaint to be that, as there was an allegation of family violence, the Tribunal ought to have concluded the parties were in a de facto relationship, as one cannot have “domestic violence” without a domestic relationship. This assertion overlooks the acceptance by the Tribunal that the parties were in a relationship at some point in time.  However, it was not satisfied that the nature of the relationship was a de facto relationship.

6. The Tribunal was required to establish whether the parties were in a de facto relationship for the purpose of s.5CB of the Migration Act. Having regard to the factors in regulation 1.09A(3) of the Regulations, the Tribunal was not satisfied that the parties were in a de facto relationship.[27]  There is no suggestion on the face of the material that Mr Chao ever claimed the family violence as support for the proposition that he was in a de facto relationship.  In the absence of a transcript or further evidence of such a claim by Mr Chao, I find that the Tribunal was not required to consider the evidence in relation to the claim of family violence and no jurisdictional error is disclosed by this complaint.

   [27] CB 326-327 at [36]

Unreasonableness

1. Mr Chao contends that the Tribunal failed to act reasonably.  This complaint is properly characterised as a complaint that the Tribunal’s decision was illogical or irrational.[28]  Mr Chao has not demonstrated that the Tribunal formed a view that no rational decision maker could have arrived at on the same evidence. As a consequence, no jurisdictional error is disclosed by this complaint.

   [28] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130] per Crennan and Bell JJ

2. Reasonable minds might differ as to the approach taken by the Tribunal, in particular its decision to find that the parties were not in a de facto relationship at the time of application, rather than to assume that they were and to deal with the evidence of family violence.  The position may have been different if the Tribunal had ignored entirely the evidence of family violence.  That, however, is not the case.  The Tribunal dealt with that issue at [38]:[29]

   The Tribunal has considered Mr Chao’s claimed family violence.  It has considered the statutory declarations and the information provided as it relate[s] to the parties relationship.  The Tribunal on the facts before it has determined, that the parties shared a relationship but not a de facto relationship.  As the Tribunal has determined that the parties were never in a de facto relationship, it has not gone on to consider Mr Chao’s claims of family violence.

   [29] CB 327

Conclusion

1. I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will so order.

3. I will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       3 November 2017