CHEN v Minister for Immigration

[2017] FCCA 503

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 503

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – the adverse findings made by the Tribunal in relation to whether there were compelling circumstances were open on the material before the Tribunal – Tribunal complied with its statutory obligations and the obligations of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, 820.211, 820.321 of Sch 2, Sch 3

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: JIALUAN CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2270 of 2016

Judgment of: Judge Street

Hearing date: 17 March 2017

Date of Last Submission: 17 March 2017

Delivered at: Sydney

Delivered on: 17 March 2017

REPRESENTATION

The First applicant appeared in person.

Solicitors for the Respondents: Ms E Warner Knight
Australian Government Solicitor

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicants pay the First Respondent’s costs fixed in the amount of $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2270 of 2016

JIALUAN CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 August 2016 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicants are nationals of China. The second applicant is the first applicant’s son and entered Australia on 2 December 2012 on a student subclass visa and has been included as a member of the family unit.  The first applicant arrived in Australia on 17 October 2006 on a Special Category (subclass 444) visa. The first applicant declared to the Department that he had entered on a false passport and that his Special Category (subclass 444) visa was cancelled on 11 April 2008. The applicant applied for protection which was refused.  

3. The first applicant met the sponsor in March 2013. On 12 March 2014, the first applicant and the sponsor were married. On 11 April 2014, the first applicant applied for a Partner (Temporary) (Class UK) visa, adding his son as a dependent. On 31 March 2015, the first applicant and sponsor were invited by the delegate to provide additional information as to whether there are compelling reasons to not apply the Schedule 3 criteria.

4. On 28 April 2015, the applicants’ agent provided additional information and documents in response to the Department’s request.  On 29 February 2016, the delegate refused the applicants’ application. 

The Tribunal

1. On 17 March 2016, the applicants applied for review of the delegate’s decision. By letter dated 9 May 2016, the applicants were invited to attend a hearing on 12 July 2016. The applicants appeared on that date to give evidence and present arguments and their migration agent was also present.

2. The Tribunal in its reasons identified that the delegate had refused to grant the visa on the basis the applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

3. The Tribunal identified the first applicant’s background and claims in relation to his sponsor and noted that since the relationship, the sponsor had travelled overseas on a number of occasions since their marriage. 

4. The Tribunal identified that the issue in the present is whether the first applicant had held a substantive visa at the time of the application or had applied within 28 days of the day his last substantive visa ceased and if not, whether there were compelling reasons not to apply the Schedule 3 criteria.

5. The Tribunal found that the first applicant’s last substantive visa was held on 11 April 2008 and that the Tribunal accordingly had to consider whether there were compelling reasons not to apply the Schedule 3 criteria. The Tribunal set out the applicant’s claims and concerns in that regard. In relation to the first applicant’s risks if he returns to China, the Tribunal found that that was not a compelling reason not to apply the Schedule 3 criteria.

6. The Tribunal found that the difficulties that the first applicant may experience in China was not a compelling reason not to apply the Schedule 3 criteria. The Tribunal referred to the first applicant’s claims concerning his support of the sponsor. The Tribunal was not satisfied that the first applicant’s relationship with the sponsor and support was a compelling reason not to apply the schedule 3 criteria.

7. The Tribunal was not satisfied there were compelling reasons for applying the Schedule 3 criteria and found the applicant did not meet cl.820.211(2)(d)(ii) of the Regulations. The Tribunal found that as the primary applicant did not meet the criteria under cl.820.211 of the Regulations, the secondary applicant did not satisfy the criteria under cl.820.321(a) of the Regulations and affirmed the decision not to grant the applicants a Partner (Temporary) (Class UK) visa.

Before this Court

1. On 17 November 2016, a Registrar of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. On 17 November 2016, a Registrar fixed the matter today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. 

2. At the commencement of the hearing, the Court explained to the first applicant that the matter was fixed today for a show cause hearing.  The Court explained to the first applicant that the Court was considering whether or not the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. 

3. The Court explained in summary that this meant the Court was considering whether the first applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair. The Court explained that it would identify the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the first applicant in reply. The first applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The attachment to the application identifies the following under the orders sought and the following under grounds of the application:-

   Orders sought:-

   1. I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for spouse visa onshore.

   2. They did not consider the fact that I had compelling reasons for applying subclass 820 onshore. I have provided sufficient evidence to support my application, however DIBP and AAT did not give a good consideration of my wife medical condition was out of my control.

   3. I came to Australia due to strong fears from persecution from Chinese government being a Buddhist and Yi fuan Dao follower. I clearly explained about IKuan Tao and Buddhist, however AAT did not well considered.

   3. DIBP and AAT should granted my spouse visa application and allow me to stay in Australia.

   Grounds of the application:-

   1. I am a Chinese citizen and have a genuine spouse relationship with my wife. My wife's medical condition has getting worse and worse and she desperately need my support in Australia.

   2. I provided with AAT member my compelling reasons, however the member did not accept it. I am very disappointed that the member ignored the fact that I have been supporting our daily life throughout my application. The member ignored the fact of my wife's medical condition mentioned in the report from my physiologist.

   3.About my Buddhism religion:

   Tribunal ignored my religious denomination of GUAN YIN FA MEN, which affiliate to Buddhist's faith, of Buddhism. My religion is initiated by the the Supreme Master Ching Hai from Tai Wan. This is critical that my religious denomination in China is banned and subject to persecution by government. Adherents to my religion or those who practice in China have been targeted, detained, mistreated, repressed or under community surveillance at name of evil or cult. No more freedom is allowed for our religion to be publicly practiced, worshiped, prayed, gathered and evangelized.

   A Brief Biography of the Supreme Master Ching Hai

   Master Ching Hai was born to a well-off family in Aulac (Vietnam), the daughter of a highly reputed naturopath. She was brought up as a Catholic, and learned the basics of Buddhism from Her grandmother. As a young child, She showed a precocious interest in philosophical and religious teachings, as well as an uncommonly compassionate attitude towards all living beings.

   At the age of eighteen, Master Ching Hai moved to England to study, and then later to France and then Germany, where She worked for the Red Cross and married a German scientist. After two years of happy marriage, with the consent of Her husband,  She left Her marriage in pursuit of enlightenment, thus fulfilling an ideal which had been with Her since Her childhood. At this time, She was studying various meditation practices and spiritual disciplines under the guidance of the teachers and masters who were within Her reach. She came to realize the futility of one person trying to help the suffering of humanity, and recognized that the best way to help people was to attain total realization Herself With this as Her singular goal, She traveled around many different countries, searching for the perfect method of enlightenment.

   Through many years of test, trials and tribulations, Master Ching Hai finally found the Quan Yin Method and the Divine Transmission in the Himalayas. After a period of diligent practice, during Her retreat in the Himalayas, She attained complete enlightenment.

   4.About my Taoism belief- Yi Guau Dao (I-Tao)

   My statement also revealed the fact as a Dao pursuer I used to be a Yi Guan Dao follower, a denomination of Tao. According to my knowledge I-Tao is initiated in China in early 90's and ahs gone through a very traumatic hardship, persecution by ruling authorities in China at different historical stage especially it was banned and eliminated in 1953 when Chinese Communist Regime took power of mainland China in 1949. Adherents or followers of I-TAO suffered a catastrophe or salutary through banning public and home alters for religious practice till present in China.

   Information about I-TAO

   Yiguandao is characterized by an eschatological and soteriological doctrine, presenting itself as the only way to salvation. It also encourages adherents to engage in missionary activity. Yiguandao is the worship of the source of the universal reality personified as the Eternal Venerable Mother, or the Splendid Highest Deity (Chinese; pinvin:) as in other folk religious sects. The highest deity is the primordial energy of the universe, identified in Yiguandao thought with the Tao in the wuji or “unlimited” state and with fire. The name used in contemporary Yiguandao scriptures is the “Infinite Mother” (Chinese: pinyin:) and the “lantern of the Mother” (Chinese: pinyin) a flame representing the Mother-is the central focus of Yiguandao shrines.

   5. AAT member did not show any concerns to my explanations at the hearing, I don't think I have been fairly treated.

Consideration

Paragraphs under orders sought

1. Paragraphs 1 to 4 under orders sought are in substance an invitation to this Court to engage an impermissible merits review. Paragraphs 1 to 4 under the orders sought do not identify any arguable jurisdictional error. The adverse findings by the Tribunal in relation to whether there were compelling circumstances were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  On the face of the material before the Court, the Tribunal complied with its statutory obligations. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness.  No arguable jurisdictional error is identified by paragraphs 1 to 4 of the orders sought.

Grounds of the application

1. In relation to the grounds of the application, Grounds 1 and 4 are in substance an invitation to this Court to engage in impermissible merits review and do not identify any arguable jurisdictional error.

2. Ground 2 suggests that the Tribunal ignored the first applicant’s support for his sponsor and the sponsor’s medical condition. The Tribunal’s reasons reflect that both matters were discussed in detail by the Tribunal. Ground 2 fails to make out any arguable jurisdictional error.

3. Ground 3 suggests that the Tribunal ignored the first applicant’s religious beliefs. The Tribunal’s reasons reveal that the Tribunal found that the first applicant had embellished his evidence about religion and was not satisfied the first applicant had established that he would face risks to his safety in China and that his religious beliefs were not compelling reasons for not applying the Schedule 3 criteria. Ground 3 fails to make out any arguable jurisdictional error.

4. Ground 5 is a general assertion of unfairness and in substance appears to take issue with the adverse findings made by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations, and the adverse findings by the Tribunal were open. Ground 5 is in substance an invitation to this Court to engage in impermissible merits review. No arguable jurisdictional error is made out by Ground 5.

First applicant’s submissions from the bar table

1. From the bar table, the first applicant indicated that he wished to stay in Australia to look after his wife and that she was unwell. The Court again explained to the first applicant that it did not have the power to decide the matter on compassionate grounds or to revisit the merits or make fresh findings of facts. The Court explained again that it was confined to considering whether or not the Tribunal’s decision was unlawful or unfair. The first applicant maintained that he wanted the opportunity to look after his wife. Nothing said from the bar table identified any arguable jurisdictional error. 

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. 

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 April 2017