Chen v Minister for Immigration
[2020] FCCA 781
•30 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION | [2020] FCCA 781 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal of a resident return visa – whether the delegate’s decision was unreasonable or whether the delegate misinterpreted the relevant regulations considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.82, 338, 347, 348, 349, 476, 477, 500 Migration Amendment Regulations (No. 13) 1999 (Cth), No 259 of 1999 Migration Regulations 1994 (Cth) |
| Cases cited: ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630 BWC16 v Minister for Home Affairs [2018] FCA 1375 BZD17 v Minister for Immigration [2018] FCAFC 94 DHK16 v Minister for Immigration [2018] FCA 1353 EHF17 v Minister for Immigration [2019] FCA 1681 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZOCT (2010) 189 FCR 577 Minister for Immigration v SZVFW [2018] HCA 30 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Rezaei v Minister for Immigration [2001] FCA 1294 SZSQL v Minister for Immigration (No 2) [2015] FCA 1118 Tran v Minister for Immigration [2004] FCAFC 297 |
| Applicant: | YUEYI CHEN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 1768 of 2019 |
| Judgment of: | Judge Driver |
| Hearing dates: | 6 November 2019, 3 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Ty Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 18 March 2020 is dismissed.
The applicant shall pay the costs and disbursements of the first respondent in relation to the application as agreed, or, in the absence of agreement, as assessed and if necessary taxed in accordance with the Federal Court Rules 2011 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1768 of 2019
| YUEYI CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Chen) seeks judicial review of a decision of a delegate of the Minister (delegate) made on 16 November 2018. The delegate refused to grant Mr Chen a resident (return) visa.
It is uncontroversial that the Court has jurisdiction to review the delegate’s decision.
The following statement of background facts is derived from the parties’ submissions.
Mr Chen, a citizen of China, applied for a resident return (Class BB) visa on 16 November 2018.[1] At the time, he was the holder of a three month resident return (subclass 157) visa that was granted on 9 November 2018.
[1] Court Book (CB) 1
On 9 February 2019, Mr Chen’s resident return visa ceased as he was not in Australia on that day (see s.82(5) of the Migration Act 1958 (Cth) (Migration Act)).
On 23 May 2019, the delegate refused to grant Mr Chen a resident return (subclasses 155 and 157) visa.
Delegate’s decision
The delegate confirmed that he had considered the relevant provisions in the Migration Act and the Migration Regulations 1994 (Cth) (Regulations), information contained in the Minister’s Department’s Procedure Advice Manual 3 (PAM3) Schedule 2 RRV – resident return visas, all documents and information provided by Mr Chen in support of his application and other relevant information held on departmental files.[2]
[2] CB 66
Noting that departmental records indicated that Mr Chen had only been present in Australia as the holder of a permanent visa for 47 days in the last five years immediately before making the application, the delegate was not satisfied that Mr Chen met clause 155.212(2) of Schedule 2 to the Regulations.[3]
[3] CB 67
Turning to clause 155.212(3), the delegate noted that departmental records showed that Mr Chen was outside Australia at the time of application.[4] The delegate also noted that Mr Chen claimed to have substantial ties to Australia which were of benefit to Australia, and had submitted various documents in support of his application.[5]
[4] CB 68
[5] CB 68
The delegate noted that the purpose of the resident return visa was to facilitate re-entry into Australia of non-citizen permanent residents and ensure that only those people who have a genuine commitment to residing permanently in Australia or who are contributing to Australia’s wellbeing retain the right to return to Australia and remain permanently.[6]
[6] CB 68
The delegate set out Mr Chen’s migration history, noting that since his first arrival as a permanent resident on 25 November 2007, he had spent 820 days in Australia compared to 3,189 days overseas.[7] The delegate also noted that Mr Chen had been granted two subsequent resident return (subclass 155) visas and was granted a resident return (subclass 157) visa the year prior. The delegate found that Mr Chen had shown no intention to reside in Australia permanently since the grant of his permanent visa.
[7] CB 68
The delegate noted that Mr Chen had provided evidence that he was married with a child, and that he and his family lived and worked overseas.[8] The delegate found that Mr Chen had shown no evidence of any imminent intention to reside in Australia permanently, and noted that it became increasingly difficult to demonstrate substantial ties of benefit over greater periods of absence.[9]
[8] CB 69
[9] CB 69
While the delegate acknowledged that Mr Chen’s parents were Australian permanent residents and his sister and brother-in-law were Australian citizens who resided in Australia, he gave less weight to these personal ties as these individuals were not members of Mr Chen’s immediate family unit.[10] Given his minimal residence, the delegate was not satisfied that Mr Chen regarded Australia as home or was, or had been, a participating member of the Australian community and economy. The delegate recorded that having examined all the submitted evidence, he had considered whether Mr Chen had business, cultural, employment or personal ties with Australia and if so, whether they were substantial, that is, considerable and of real worth or value. The delegate also noted that he had considered if the ties were of benefit to Australia, which he defined as a demonstrable benefit to Australia arising from the substantial ties.[11]
[10] CB 69
[11] CB 69
The delegate concluded that he was not satisfied that Mr Chen had any substantial ties with Australia that were of benefit to Australia.[12] Based on the submitted documentation, the delegate found no overall benefit to the Australian community arising from Mr Chen’s cumulative ties to Australia. Accordingly, the delegate was not satisfied that Mr Chen met clause 155.212(3).
[12] CB 69
The delegate found that Mr Chen did not meet clause 155.212(3A) as he was outside of Australia at the time of application.[13] The delegate also found that Mr Chen did not meet clause 155.212(4) as he had not demonstrated that he was a member of a family unit of a person who had been granted a subclass 155 visa that was still in effect, or met clause 155.212(2), (3) or (3A).[14]
[13] CB 69
[14] CB 70
Turning to the criteria for grant of a subclass 157 visa, the delegate noted that departmental records showed that Mr Chen was outside of Australia at the time of application and had been lawfully present in Australia for 47 days in the last five years before applying for the visa.[15] The delegate also found that Mr Chen had not demonstrated compelling or compassionate reasons for his last departure from Australia. The delegate was therefore not satisfied that Mr Chen met clause 157.212(2).[16]
[15] CB 70
[16] CB 70
The current proceedings
These proceedings began with a show cause application filed on 12 July 2019. The application was filed out of time and Mr Chen sought an extension of time. I dealt with that issue on 6 November 2019 and granted an extension of time under s.477(2) of the Migration Act. I also gave leave for Mr Chen to file and serve an amended application and called for additional evidence and submissions.
The amended application was filed on 18 March 2020 and contains two particularised grounds:
1. The Delegate made a jurisdictional error of legal unreasonableness in relation to the weight to be accorded the Applicant’s relationship with his family.
a. The Delegate at page 4 of his decision found that the Applicant had parents who were permanent residents of Australia and a sister and a brother in law who were Australian citizens;
b. The Delegate at page 4 of his decision found that, as the Applicant’s parents, sister and brother in law were not members of his immediate family unit he would “give less weight to [these] personal ties”;
c. The Delegate proceeded on the unsubstantiated assumption that, in any family these personal ties overserved less weight instead of examining the circumstances, including whether greater weight should be attributed to parental ties in family with a Chinese cultural heritage;
d. As a result, the Delegate imposed an arbitrary standard of conduct or emotional response upon the Applicant: BWC16 v Minister for Home Affairs [2018] FCA 1375 at [59] per Thawley J;
e. As a further result, the Delegate made an arbitrary assumption about the nature of the Applicant’s family: DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [33] per Gleeson J;
f. Accordingly, there was no evidence and intelligible justification for the Delegate’s reasoning (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10]) and that error was material to the result (Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31] per Kiefel CJ, Gageler and Keane JJ).
2. The Delegate made a jurisdictional error by misinterpreting or misapplying cl 155.212(3) of the Migration Regulations 1994 (Cth).
a. The clause required the Delegate to assess whether “the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia”:
b. The Delegate stated that:
i. “The purpose of the Resident Return Visa is to facilitate the re-entry into Australia of noncitizen permanent residents and ensure that only those people who have a genuine commitment to residing permanently in Australia or who are contributing to Australia’s wellbeing retain the right to return to Australia and remain permanently”;
ii. “The applicant has shown no intention to reside in Australia permanently since the grant of his permanent visa”;
iii. “The applicant provided evidence that they are married and has a child overseas. The applicant and their family currently living overseas and applicant is also working overseas. The applicant has shown no evidence of any imminent intention to reside in Australia permanently”;
iv. “It becomes increasingly difficult to demonstrate substantial ties of benefit over greater periods of absence. This is in part because the longer the period of absence, the more difficult it is to continue to maintain ties of sufficient importance to be considered ‘substantial’”;
v. “Whilst I acknowledged that the applicant’s parents are holder of permanent resident also has an Australian citizen sister and brother in law who resides in Australia, they are not member of the applicant’s immediate family unit, therefore I give less weight to this personal ties”;
vi. “Considering applicant’s minimal residence in Australia, I am not satisfied that the applicant regards Australia home. I am also not satisfied that the applicant is, or has been, a participating member of an Australian community and economy”.
c. The Delegate misinterpreted or misapplied “substantial … personal ties which are of benefit to Australia” under the clause because the Delegate relied on the Applicant achieving or to having an intention to achieve predominant or constant residence in Australia or to be participating member of the Australian community and economy;
d. The Delegate did not instead assess whether the Applicant had the relevant substantial ties on the ordinary meaning of the term and, in particular, did not consider whether the Applicant’s ties were substantial in light of the circumstances in which permanent residency was granted being the status of the Applicant as a remaining relative.
I have before me as evidence the court book filed on 21 August 2019 and the supplementary court book filed on 19 December 2019.
The legal issues were traversed in oral argument over two days on 6 November 2019 and 3 April 2020 with the assistance of written submissions.
Consideration
Relevant legislation
Under s.476 of the Migration Act, the Federal Circuit Court has jurisdiction to review “migration decisions”; however, by s.476(2)(a), it has no jurisdiction in relation to a “primary decision”. A “primary decision” is defined by s.476(4) as one that is reviewable under Part 5 or 7 of the Migration Act or s.500, or would have been reviewable under those provisions if an application had been made in time.
Part 5 of the Migration Act provides for review by the Tribunal of “Part 5-reviewable decisions” (see ss.348-349). That class of decisions in defined by s.338, which relevantly provides:
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa could be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen made the application for the visa while in the migration zone; and
…
(6) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
…
(7A) A decision to refuse to grant a non‑citizen a permanent visa is a Part 5‑reviewable decision if:
(a) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone.
Section 347(3A) of the Migration Act provides that:
If the Part 5‑reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
Clause 155.4 of Schedule 2 to the Regulations provide that the circumstances applicable to the grant of a subclass 155 visa are as follows
155.4 - Circumstances applicable to grant
155.411
If the application is made outside Australia, the applicant must be outside Australia at the time of grant.
155.412
If the application is made in Australia, the applicant may be in or outside Australia, but not in immigration clearance, at the time of grant.
Clause 157.4 of Schedule 2 to the Regulations provide that the circumstances applicable to the grant of a subclass 157 visa are as follows:
157.4 - Circumstances applicable to grant
157.411
If the application is made outside Australia, the applicant must be outside Australia at time of grant.
157.412
If the application is made in Australia, the applicant may be in or outside Australia, but not in immigration clearance, at the time of grant.
Jurisdiction
I am satisfied that the Court has jurisdiction to review the delegate’s decision.
The delegate’s decision is not one that is reviewable under Part 7 or s.500 of the Migration Act. Nor is it reviewable under Part 5. As Mr Chen submits at [7] of his initial written submissions, the delegate’s decision does not fall within s.338(2) or (6) of the Migration Act as Mr Chen was not in the migration zone when he made the application and the visa is a visa that could be granted while the non-citizen is in the migration zone.
The delegate’s decision is a Part-5 reviewable decision by virtue of s.338(7A) because:
a)it is a decision to refuse to grant a non-citizen a permanent visa;
b)the applicant was outside the migration zone when he made the application; and
c)the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
However, s.347(3A) provides that if the Part 5-reviewable decision is covered by s.338(7A), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the decision was made and is physically present in the migration zone when the application for review is made. In circumstances where the applicant was outside of Australia at the time of the delegate’s decision, that decision was not reviewable under Part 5 of the Migration Act.
Accordingly, the delegate’s decision is not a “primary decision” as defined in s.476(4) of the Migration Act and this Court therefore has jurisdiction under s.476(1).
Ground 1 – was the delegate’s decision unreasonable?
Mr Chen’s challenge concerns the following paragraph from the delegate’s decision:[17]
Whilst I acknowledged that the applicant’s parents are holder of permanent resident also has an Australian citizen sister and brother in law who resides in Australia, they are not member of the applicant’s immediate family unit, therefore I give less weight to this personal ties.
(errors in original)
[17] CB 69
It is settled that decision makers will make a jurisdictional error where they make material findings of fact which are legally unreasonable, in the sense that they lack an evident and intelligible justification.[18] As part of the law of legal unreasonableness, decision makers have been held to make a jurisdictional error where they impose an arbitrary standard of knowledge upon a person with respect to religion.[19]
[18] Minister for Immigration v SZVFW [2018] HCA 30 at [10] and [82]
[19] BWC16 v Minister for Home Affairs [2018] FCA 1375 at [51], [55], [59]
In BWC16, Thawley J at [51] adopted the description of an arbitrary standard of religious knowledge by Jacobson J (albeit his Honour was dissenting) in Minister for Immigration v SZOCT[20] at [5]-[10]:
A number of Full Courts of the Federal Court have considered the question of the standard of knowledge which the Tribunal is entitled to expect from, and explore with, applicants for protection visas. The relevant passages from the judgments are set out and discussed by Buchanan J.
There are four essential principles which are relevant to the disposition of the appeal. Without seeking to depart from his Honour’s statement of the principles or the full exposition of the principles in the various authorities, I will endeavour to encapsulate them as follows.
First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 (“SZLSP”) at [38].
Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].
Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
[20] (2010) 189 FCR 577
As Thawley J noted in BWC16, the concept of an arbitrary standard is not restricted to religious knowledge. It extends to other knowledge, such as the knowledge expected of the member of a political party.[21]
[21] see at [55]
The concept of an arbitrary standard, as a manifestation of legal unreasonableness, may be extended to any field of knowledge or conduct relevant to the application of visa criteria. At the very least, it may be extended to behaviour and ties within families. As Gleeson J said with reference to authority in DHK16 v Minister for Immigration[22] at [33]:
In my view, there is an assumption underlying this reasoning that the appellant’s mother was able and willing to use her land as collateral for a loan for the appellant. However, the information in the protection visa application was to the contrary of this assumption and there is no suggestion of any other information (putting aside what might be inferred from the entry interview) that supported such an assumption. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind. In this case, contrary to the IAA and FCCA judge’s assumption that I have identified, the mother apparently had been unable or unwilling to provide assistance to relieve the appellant of his debt to SW.
[22] [2018] FCA 1353
Mr Chen submits that an arbitrary assumption arguably arises in the present case. The delegate referred to Mr Chen having family present in Australia, with particular regard to Mr Chen’s parents, sister and brother‑in-law. There can be no doubt that this involves the delegate having regard to a relevant consideration for the purposes of deciding whether to grant or refuse the visa. Mr Chen, therefore, makes no complaint as to the delegate taking into account such a matter.
Even so, Mr Chen does complain about the extent or nature of that regard. Mr Chen contends that the delegate decided that immediate family is necessarily more important and extended family is necessarily less so. He has thus claimed to give “less weight” to the personal ties of Mr Chen in the form of his parents, sister and brother-in-law. Mr Chen submits that “less weight” in this context is akin to either no weight or no determinative weight.[23] It was arbitrary to do so without examining the significance of extended family in Mr Chen’s particular circumstances.
[23] compare BZD17 v Minister for Immigration [2018] FCAFC 94 at [46]
I prefer the Minister’s submissions in relation to the first ground.
It was for the delegate to identify such matters as he found relevant to his reasoning and to give them appropriate weight.[24] Contrary to Mr Chen’s assertion in particular (c) and his submissions, the delegate did not proceed on the unsubstantiated assumption that, in any family, such personal ties deserved less weight, instead of examining the circumstances. The delegate considered Mr Chen’s personal circumstances, including that he was married, had a child, and lived (and worked) overseas with his immediate family.[25] The delegate also found that there was no evidence of any imminent intention to reside in Australia permanently.[26] Having noted that Mr Chen had spent 820 days in Australia (compared to 3,189 days overseas) since being granted permanent residency,[27] the delegate observed that it became increasingly difficult to demonstrate substantial ties of benefit over greater periods of absence.[28] As such, it cannot be said that the delegate failed to consider Mr Chen’s personal circumstances.
[24] Tran v Minister for Immigration [2004] FCAFC 297 at [5]–[7] per Kiefel, RD Nicholson and Downes JJ; see also ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ
[25] CB 68
[26] CB 68
[27] CB 68
[28] CB 69
To the extent that Mr Chen now contends that the delegate should have attributed greater weight to his parental ties because they were a family with Chinese cultural heritage (see particular (c)), Mr Chen advanced no such claim before the delegate, nor can it be said that this claim clearly arose on the material before the delegate.[29] Indeed, while Mr Chen claimed that his family was close and looked after each other,[30] he made no reference to this being for cultural reasons or to have any cultural significance, and the evidence otherwise before the delegate indicated that Mr Chen had spent a significant amount of time outside of Australia.
[29] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [60]
[30] CB 47 [47]
While reasonable minds may differ, there is no illogicality, irrationality or unreasonableness in the delegate’s conclusion that he was not satisfied that Mr Chen had any substantial ties that were of benefit to Australia.[31] The delegate applied departmental policy in respect of “substantial personal ties of benefit to Australia” as set out in PAM3 Schedule 2 RRV – resident return visas, and found that Mr Chen:
a)had spent significantly more time overseas than in Australia;
b)resided and worked overseas with his wife and child and had shown no evidence of any imminent intention to reside in Australia permanently;
c)had personal ties to Australia in the form of his parents, sister and brother in law but less weight was given to those ties in circumstances where they were not a part of his immediate family unit; and
d)did not regard Australia as home and was not a participating member of the Australian community and economy.
[31] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ; also at [78] per Heydon J
Accordingly, there was an evident and intelligible justification for the delegate concluding that he was not satisfied that Mr Chen had any substantial ties that were of benefit to Australia.
Mr Chen relies on BWC16 at [59] and DHK16 at [33]. In both of those cases, an error was made involving the making of a critical finding of fact without probative evidence. In BWC16, Thawley J explained at [58]-[59] that the error could be characterised in various other ways, including illogicality or irrationality, and that the Immigration Assessment Authority in that case had also reached an additional arbitrary conclusion on the basis of illogical reasoning. The error in BWC16 did not concern the imposition of “an arbitrary standard of conduct”,[32] but rather a finding that the appellant had made a statement that he did not make, and an arbitrary finding that the appellant failed to demonstrate sufficient knowledge of a political party’s history.
[32] cf particular (d) of the application
By contrast, the delegate in the present case did not impose an arbitrary standard of conduct or emotional response upon Mr Chen; he simply gave less weight to Mr Chen’s ties to his extended family in Australia, having considered his overall personal circumstances. Nor did the delegate make any arbitrary assumption about the nature of Mr Chen’s family. This is not a case, as in DHK16, where the decision-maker made a positive factual finding that a family member would take certain action in circumstances where information in the visa application was contrary to that assumption and there was no other evidence to support it.
Mr Chen also contends that the delegate’s statement that he gave “less weight” to his ties to his extended family in Australia is akin to either no weight or no determinative weight. Mr Chen’s reliance on BZD17 in this regard is misplaced. In that case, the Tribunal gave “little weight” to evidence from an independent third party about his interactions with the appellant and his gay partner in Cameroon in circumstances where the Tribunal ultimately rejected the appellant’s claim that he was homosexual.[33] However, the delegate in the present case did not reject Mr Chen’s evidence about his ties to his extended family; he simply gave those ties less weight, having considered his overall personal circumstances.
[33] at [11], [40]-[42], [46]
I conclude that the decision reached by the delegate was open on the material before him. Accordingly, a finding of legal unreasonableness is not available.
Ground 2 – did the delegate misinterpret or misapply the relevant visa criteria?
Mr Chen’s submissions traverse in some detail his visa history, drawing upon the material in the supplementary court book. Importantly, Mr Chen was granted a subclass 115 remaining relative visa (subclass 115 visa) on 12 October 2007.
Criteria for subclass 115 visa
At the time, and since, the principal criterion for a subclass 115 visa is that an applicant be a remaining relative of an Australian relative who sponsored the application for the subclass 115 visa (clauses 115.211 and 115.212 of Schedule 2 to the Regulations).
Under the definition of “remaining relative”, the Australian relative must be the “parent, brother, sister, step-parent, step-brother, step-sister of the applicant” and must be “usually resident in Australia” (regulations 1.15(1)(a) to 1.15(1)(b) of the Regulations). In addition, the remaining relative must not have near relatives, as defined, who are not usually resident in Australia (regulations 1.15(1)(c) and 1.15(2) of the Regulations).
The definition of near relative is a “parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any)” (regulation 1.15(2)(a) of the Regulations) or a non-dependent child of the applicant or the applicant’s spouse (regulation 1.15(2)(b) of the Regulations).
Satisfaction of criteria by Mr Chen
It may readily be perceived how Mr Chen satisfied the criteria for the subclass 115 visa. Mr Chen was sponsored by his sister.[34] He was unmarried at the time and had no children.[35] Mr Chen had no near relatives outside Australia.[36]
[34] Supplementary Court Book (SCB) 1
[35] SCB 1-2, 13, 14-15
[36] SCB 19
Need for subclass 155 visa
The subclass 115 visa is permanent. However, it only permits the visa holder to travel to and from Australia for five years, after which the visa holder can remain in Australia but not re-enter Australia (clause 115. 511 of Schedule 2 to the Regulations). In order to re-enter Australia, the visa holder would need to be granted a subclass 155 visa or a similar visa, such as the subclass 157 three month resident return visa.
Criteria for subclass 155 visa
The principal criterion for the subclass 155 visa is in clause 155.212(3) of the Regulations, which provides:
The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia,
It is uncontroversial that the balance of clause 155.212(3) of the Regulations is not in issue in the present case.
Jurisdictional error by delegate
The question, therefore, is whether the delegate made a jurisdictional error in finding the absence of “substantial … personal ties with Australia”. The delegate has not found it necessary to go on to consider whether those ties “are of benefit to Australia”. If Mr Chen were to succeed in establishing that the delegate erred, the question of benefit would arise, if at all, upon remittal.
There is no directly applicable case law according to the researches of Mr Chen. He submits that “substantial” bears its ordinary meaning, ie being of significance, substance or importance. However, as the terms “the applicant has” indicate, substantial ties must be assessed in light of the circumstances of Mr Chen, including his or her visa history. What constitutes substantial ties in relation to one person may not have the same status for another person when regard is had to his or her circumstances.
The delegate is said to have erred in this respect. He refers to the family ties on the basis of which Mr Chen was granted the subclass 115 visa. However, he then rejects those as being of “less weight” for the subclass 155 visa. He does not consider that these were the only ties relevant to Mr Chen being granted the subclass 115 visa. Nor does he consider the fact that Mr Chen met, married and bore children after the grant of the subclass 115 visa. Mr Chen submits that it cannot have been the intention of the drafter to make ties sufficient for the grant of the subclass 115 visa but insignificant for the related grant of a subclass 155 visa.
On the other hand, the only relevant statutory criterion is the concept of substantial ties. The delegate refers to a number of other matters. The delegate first refers to a perceived purpose of the subclass 155 visa, the origins of which are not apparent in the enacting Regulations or explanatory material.[37] The delegate also referred to whether Mr Chen regards Australia “as home”, which together with other remarks, seems to erect a criterion of predominant or constant residence in Australia. The delegate, in giving significance to these matters, is said to have supplanted the statutory criterion and applied the wrong test.
[37] see Migration Amendment Regulations (No. 13) 1999 (Cth), No 259 of 1999
Mr Chen submits that the delegate’s analysis is not saved by his reference to the number of days Mr Chen spent abroad and in Australia since the subclass 115 visa was granted. In the first place, this calculation forms part of the delegate’s “mistaken introduction” of a criterion of predominant or constant residence in Australia. Secondly, what appears to be in the nature of a mathematical exercise is said to overlook the test which is imposed by the Regulations, namely substantial ties in all the circumstances of Mr Chen. A mathematical exercise is not for this purpose circumstantial.
Resolution
I do not accept these submissions. It is apparent from the material in the original and supplementary court books that Mr Chen’s circumstances changed following the granting of the subclass 115 visa. In particular, he acquired a wife and child in China. The material Mr Chen advanced in support of his application for the return visa now in issue itself demonstrates the dramatic change over time in the amount of time he spent in Australia. It fell from 365 days over 12 months as at 24 November 2008 to 10 days over 12 months as at 11 November 2018.[38] It was readily apparent to the delegate that not only was there a substantial temporal change in Mr Chen’s connections to Australia but also a qualitative change.
[38] CB 49
I agree with and accept the Minister’s submissions in relation to the second ground.
First, the delegate did not consider “family ties” in the way asserted by Mr Chen. The delegate’s reasons must be read in context and fairly. The delegate considered Mr Chen’s family circumstances as put by him in his visa application and supporting documents.[39] In the paragraph preceding the delegate’s consideration of Mr Chen’s family members who reside in Australia, the delegate made correct observations about what constitutes “substantial ties”. The delegate then considered Mr Chen’s family circumstances in this context but gave “less weight to [these] personal ties” because Mr Chen’s immediate family members (wife and child) are not Australian residents. It was open to the delegate to reason in this way about Mr Chen’s family circumstances in determining whether his personal ties to Australia are “substantial” for the purposes of clause 155.212(3).
[39] see CB 68
Further, as the delegate recorded at CB 69, “[h]aving examined all the submitted evidence, I have considered whether the applicant has business, cultural, employment or personal ties with Australia and, if so, whether these ties are substantial (that is, the ties have considerable and real worth or value)”. This part of the delegate’s reasons establish that the delegate had regard to “all the submitted evidence” and correctly comprehended the meaning of “substantial” ties for the purposes of clause 155.212(3). In so analysing Mr Chen’s evidence against the applicable criterion, the delegate did not fail to consider a “relevant” matter “that the decision-maker is bound by the [legislation] or by law to take this into account”.[40]
[40] see Rezaei v Minister for Immigration [2001] FCA 1294 at [57]; SZSQL v Minister for Immigration (No.2) [2015] FCA 1118 at [5], citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Secondly, the delegate did not “erect a criterion of predominant or constant residence in Australia”. Again, read fairly and in context, the delegate found that “[c]onsidering [the] applicant’s minimal residence in Australia, I am not satisfied that the applicant regards Australia home.” That Mr Chen regards Australia as home was a matter expressly put forward by him in his statement[41] in support of his “personal ties and connections with Australia”.[42] The delegate’s task was to consider whether Mr Chen has substantial business, cultural, employment or personal ties with Australia by considering his visa application and supporting material. In doing so, it was open to the delegate to consider Mr Chen’s history of absence from Australia[43] and find that he does not regard Australia as home. This reasoning was a logical a step towards the delegate concluding that “I am not satisfied that the applicant has substantial ties with Australia”.
[41] CB 47 [48]
[42] CB 47
[43] which Mr Chen himself accepted was relevant in his visa application – see Mr Chen’s claims at CB 45, heading “physical residence and reasons for absence”
Thirdly, the delegate did not impermissibly import a “mathematical exercise” as part of a “mistaken introduction of a criterion of predominant or constant residence in Australia.” The delegate considered Mr Chen’s days spent in Australia (820) compared to days spent overseas (3,189) since his first arrival in Australia and ultimately concluded that the “applicant has shown no intention to reside in Australia permanently since the grant of his permanent visa.” The delegate then observed that the “applicant has shown no evidence of any imminent intention to reside in Australia permanently.” Further, the delegate reasoned at CB 69 that “the longer the period of absence, the more difficult it is to continue to maintain ties of sufficient importance to be considered ‘substantial’.” This reasoning was open to the delegate in considering whether Mr Chen has substantial ties to Australia. It also illustrates that, in making these findings, the delegate correctly applied the relevant criterion. Moreover, the relevance of Mr Chen’s length of residence in Australia for the purposes of the resident return visa is clear from clause 155.511(b). That clause, in essence, provides that an applicant who has been a resident in Australia as the holder of a permanent resident visa for at least two of the last five years (and thereby satisfies clause 155.212(2)) may be granted a five year resident return visa. Clause 155.511(c), on the other hand, provides that where an applicant relies on, relevantly, clause 155.212(3) then a visa of one year or a shorter period determined by the Minister may be granted.
Finally, for completeness, it is important to note that one of the primary criteria for Mr Chen’s initial remaining relative visa (clause 115.223(2)) was that he satisfies Public Interest Criterion 4009, which provides that Mr Chen “intends to live permanently in Australia”. Therefore, to the extent that the grant of the remaining relative visa has some connectedness to the application and criteria for a resident return visa, it was open to the delegate to consider whether Mr Chen demonstrates an intention to live permanently in Australia.
This ground does not successfully impugn the delegate’s application of clause 155.212(3) or the state of satisfaction consequently reached. The delegate’s state of satisfaction concerning whether Mr Chen’s ties to Australia were substantial was formed by a process that “could be reached by a logical or rational person on the same material and complies with the other requirements”.[44]
[44] EHF17 v Minister for Immigration [2019] FCA 1681 at [84] per Derrington J
It is important, in my view, for decision makers dealing with this class of visa to examine all of the material circumstances in what is a highly subjective consideration. It is not enough simply to focus upon a temporal issue of time spent in Australia. A temporal issue is inevitable (as was the case with Mr Chen) because his extended absence from Australia was the reason he needed the return visa. If he had been in Australia after five years from the grant of the subclass 115 visa, he could have stayed here. While there could have been a more fulsome analysis of the various matters raised by Mr Chen, I am not persuaded that the delegate misapplied or misunderstood the visa criteria.
Conclusion
Mr Chen has failed to establish that the decision of the delegate is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I took submissions on costs at the resumed hearing on 3 April 2020. The parties recognised that the recoverable costs would be above scale and, rather than seek to quantify them, they agreed that a generic costs order would be appropriate. I will so order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 April 2020
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