Chen v Minister for Immigration

[2017] FCCA 496

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 496

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether the Tribunal complied with its statutory obligations – whether the applicant was afforded procedural fairness – the Tribunal’s transcript does not support the proposition that the applicant was deprived of the opportunity to complete giving evidence and arguments – the Tribunal complied with s.360 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 476.

Migration Regulations 1994, cl.820.211 of Schedule 2, Schedule 3.

Applicant: KONGYONG CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2366 of 2016

Judgment of: Judge Street

Hearing date: 16 March 2017

Date of Last Submission: 16 March 2017

Delivered at: Sydney

Delivered on: 16 March 2017

REPRESENTATION

Solicitors for the Applicant:

Mr N Dobbie

Dobbie And Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2366 of 2016

KONGYONG 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 Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 August 2016 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of China and arrived in Australia on 8 September 2007 on a subclass TU-571 visa which ceased on 8 October 2007. The applicant was granted further substantive visas, and the last subclass TU-571 visa ceased on 15 March 2010.  The applicant became an unlawful non-citizen in Australia until he was granted a bridging visa on 12 December 2014. That bridging visa was granted in association with the application made by the applicant for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on 11 December 2014 on the grounds of being in a spousal relationship with an Australian citizen after having remained in Australia unlawfully for four years. 

The Delegate

1. The delegate identified the criteria that had to be met at the time of application in relation to cl.820.211 of the Migration Regulations 1994.  It was apparent the applicant did not hold a substantive visa at the time of the application. The delegate identified that it was necessary to consider whether there are compelling reasons for not applying the Schedule 3 criteria.  The delegate identified the policy relating to compelling reasons and the meaning of the same. 

2. The delegate referred to the applicant stating that he had a child as a result of the relationship. The delegate referred to the applicant providing on 13 October 2015 a birth certificate for the claimed child of the relationship. The delegate observed that the birth certificate only identified the mother and that there is no father on the birth certificate. It was in those circumstances that the delegate identified that little weight was given to the evidence of a child of the relationship in considering compelling circumstances. 

3. The delegate observed that on 27 October 2015 a letter was sent to the applicant giving him the option to undertake DNA testing to determine the paternity of the applicant’s claimed child of the relationship. The delegate observed that as of the date of the decision no response to that request had been received. The delegate therefore found that the applicant had not sufficiently demonstrated the he had a child of the relationship. The delegate therefore found that it was not a compelling reason to waive the Schedule 3 criteria. 

4. The delegate made reference to the applicant’s other evidence about the proposition that he had been cheated by a previous migration agent. The delegate was not satisfied there were compelling reasons that exist for the waiver of the schedule 3 criteria. 

5. The delegate found that the applicant did not meet the requirements of a cl.820.211(2)(d) of the Regulations or any of the alternative provisions within cl.820.211 of the Regulations. It is in those circumstances that the delegate refused to grant the application for a Partner (Residence) (Class BS) (Subclass 801) visa.

The Tribunal

1. The applicant applied for review on 24 April 2016. On 28 June 2016 the applicant was sent a letter inviting him to attend a hearing on 5 August 2016. That letter informed the applicant that having considered the material before it, the Tribunal was unable to make a favourable decision on that information alone. The applicant attended the hearing on that date to give evidence and present arguments. A copy of the transcript has been tendered. 

2. At the commencement of the hearing, the Tribunal member informed the applicant amongst other matters that he had to consider in the applicant’s case whether there are compelling reasons for not applying the Schedule 3 criteria. It was apparent that the fact of not holding of the substantive visa was not an issue. 

3. The Tribunal explained that the law required the applicant to hold a substantive visa unless there are compelling reasons for not applying such criteria. The Tribunal observed that there was not any dispute in the present case that a substantive visa was not held in the month before the application was made.

4. The Tribunal observed that the questions by the Tribunal would concern the relationship of the child and other matters relating to finances. The Tribunal explored those matters with the applicant. At Q65 of the Tribunal’s transcript, the Tribunal identified a concern in relation to inconsistencies in the applicant’s evidence and the reliability of the applicant. The Tribunal observed that the circumstances may cast out on the applicant’s credibility.  The Tribunal then asked the applicant at  Q66:-

   Okay. What are the compelling reasons? Why do you think it’s compelling that – why should I find there are compelling reasons that you shouldn’t have to apply with the schedule 3 criteria?

5. The applicant responded, querying whether the Tribunal was referring specifically to Schedule 3. 

6. The Tribunal then repeated at Q67:-

   At the beginning of the hearing I explained to you that you are required to hold a substantive visa when you make this visa application or have held it 28 days before and that’s a schedule 3 criterion and I don’t have to apply it if there are compelling reasons for not applying it. Now, in the past you told the Department that you and your wife have a baby and that’s why you need to be here so you can help her so she doesn’t have to work and you’ve told me today that in fact it’s not your baby, you’ve told me that in fact in June 2015 she wasn’t working.  Okay. What are the compelling reasons why you shouldn’t have to comply with the Schedule 3 criteria? 

7. The applicant responded to that question. That question was open-ended and gave the applicant an opportunity to further address the issue.

8. The Tribunal returned to the matter at Q85, saying:-

   Okay.  I don’t have any other questions for you.  Is there anything else you want to tell me about anything or why there are compelling reasons in your case?

9. The applicant responded:-

   When - we made this application my baby had a head problem.  I needed to stay to look after them as I also had bad injury and also my wife did not want me to leave.

10. On the face of the transcript, the answer was completed.  On the face of the transcript, the Tribunal then asked a question about the baby’s problem. After asking further questions about how the baby had allegedly hurt its head to which the response was it was crushed when it was coming out of the uterus, the Tribunal member then observed at Q90:-

    Okay.  Do you want to get your wife?

11. The applicant’s wife had been outside the hearing room and the applicant’s wife came in. In the presence of the applicant, the Tribunal member observed that he had asked the questions he needed to know from the applicant and gave the applicant’s wife an opportunity to provide further information. A question was asked about when the applicant started working and a consistent answer was given by the wife in relation to the evidence given by the applicant. The applicant’s wife suggested that she and the baby would have to return to China and the Tribunal correctly observed that there was no requirement on them to do that. 

12. The transcript then records the Tribunal member informing the parties that he had no further questions and thanking the parties for talking to him.  The Tribunal member then returned to the information provided and observed that the Tribunal took from the information that the applicant accepted he was not the biological father and that he was not going to have a DNA test.

13. The applicant responded that that was correct and the Tribunal then responded:-

    So you’re not going to have it. Okay. There’s no need. Okay.  Thank you for coming along today. You can go now, thanks.  Thank you, Interpreter.

14. In its reasons, the Tribunal identified the applicant’s background and that the applicant did not hold a substantive visa at the relevant time. The Tribunal observed that the delegate held that there were no compelling reasons for not applying the Schedule 3 criteria. 

15. The Tribunal observed that the applicant attended before the Tribunal to give evidence and present arguments and made reference to also receiving evidence from the sponsor. The Tribunal set out under the heading “Compelling Reasons” at some length, the applicant’s background and circumstances in relation to those compelling reasons. The Tribunal expressly identified the questions that it had asked the applicant about compelling reasons in the course of the hearing.

16. The Tribunal then assessed the applicant’s evidence. The Tribunal made reference to the applicant saying he was too scared to go back to China having been in Australia unlawfully for four years.  The Tribunal observed it did not consider this to be a compelling reason for not applying the Schedule 3 criteria. On the evidence before the Tribunal, the Tribunal found that it was not satisfied the sponsor and the baby rely upon the applicant’s support.   The Tribunal was not satisfied that the applicant’s sponsor and baby were compelling reasons for not applying the Schedule 3 criteria.

17. The Tribunal made reference to the applicant’s claim of having a back injury and was not satisfied that was a compelling reason for not applying the Schedule 3 criteria. 

18. The Tribunal made reference to the applicant’s family problems and the financial support he received and being scared to face his family and was not satisfied that was a compelling reason for not applying the Schedule 3 criteria. 

19. Having considered the applicant’s claims both individually and cumulatively, the Tribunal identified that it had concerns as to whether the parties have been in a genuine spousal relationship before or since the visa application. The Tribunal was not satisfied that the applicant had been supporting the sponsor and the baby or that he relies on the sponsor’s support because of his back injury. The Tribunal said that it was mindful that if the relationship was genuine, then his separation would only be temporary. The Tribunal referred to the sponsor’s evidence that that process may take two or three years. The Tribunal said that it was not satisfied that this was necessarily the case if the parties provided appropriate evidence of a genuine relationship.

20. The Tribunal found that overall, it was not satisfied there are compelling reasons for not applying the Schedule 3 criteria in this case. Accordingly, the Tribunal found the applicant did not meet the requirements of cl.820.211(2)(d)(ii) of the Regulations and affirmed the decision under review.

Before this Court

1. Ground 1 of the amended application is as follows :-

   1. The Second Respondent failed to accord the Applicant the hearing required by s360 of the Migration Act 1958.

   Particulars:

   (i) Section 360 of the Migration Act 1958 ('the Act') provides that the Applicant must be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (a) The issue arising in the decision under review was whether there were compelling reasons to waive certain criteria contained in Schedule 3 of the Migration Regulations 1994 ('the regulations'), for the purposes of subclause 820.211 (2)(d) of the regulations.

   (b) The Tribunal circumvented the Applicant giving his evidence and presenting argument in relation to why he satisfied subclause 820.211 (2)(d) of the regulations.

   (c) The Tribunal commenced questioning the Applicant in relation to his stepchild, but then terminated questioning midstream, called the Applicant's wife to give her evidence, and then closed the hearing, without further hearing from the Applicant in relation to the issue.

   (d) The Tribunal therefore failed to provide the Applicant with the hearing prescribed by s360 of the Act, thereby committing jurisdictional error.

   (ii) Despite s360 of the Act providing that the Applicant must be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, the Tribunal limited the Applicant's appearance at the hearing to merely answering the Tribunal's questions.

   (a) The Tribunal therefore failed to provide the Applicant with the hearing prescribed by s360 of the Act, thereby committing jurisdictional error.

   2. The decision of the Second Respondent was based on a fact that did not exist

   Particulars:

   (i) The Tribunal stated in its decision that the Applicant had 'nothing further to add', after certain questions were put to him at the hearing.

   (ii) The Applicant did not state or imply that he had nothing further to add when the Tribunal terminated its questioning of him at the hearing.

   (iii) The Tribunal did not ask the Applicant if he had anything else to add. Nor did the Applicant state that he had nothing else to add.

   (iv)The Applicant had not completed giving his evidence in relation to the support that he has provided and provides to his step-child and to his wife. He therefore had more evidence and arguments 'to add'. The Tribunal therefore based its decision.

2. Mr Dobbie, the solicitor for the applicant, confirmed that Ground 2 was abandoned. 

Consideration

1. In relation to Ground 1, Mr Dobbie argued that the applicant had not been given an opportunity to finish his evidence in relation to compelling circumstances. Mr Dobbie took the Court to the transcript before the Tribunal and argued that the transcript supported that the applicant had been interrupted and that the applicant had not completed the evidence and arguments in relation to providing compelling reasons. 

2. In support of the application of a denial of procedural fairness, Mr Dobbie relied upon affidavit evidence from the applicant in which the applicant referred to wanting to tell the Tribunal that he provided emotional support for his stepson who is the son of his wife. Mr Dobbie further relied upon affidavit evidence that the applicant provided emotional support for the son of his wife since he was born and that he wanted to tell the Tribunal that his son needs him to remain in Australia to keep providing emotional support as a parent. These are propositions that were clearly explored and raised before the Tribunal. 

3. The applicant’s affidavit also refers to the applicant stating that his wife had been suffering from depression after our son was born.  No evidence of that kind was adduced before the Tribunal. The applicant asserted that he provided his wife with emotional support to help her deal with her depression and with the raising of her son. In relation to the wife’s depression, this was not something that the applicant had raised before the Tribunal or the delegate. In relation to the applicant providing support, this was a matter in respect of which it was explored before the Tribunal and the Tribunal rejected the applicant’s evidence in that regard. 

4. The affidavit asserts that the applicant wanted to tell the Tribunal that there were compelling reasons why his application should be successful. No information other than the reference to depression identifies any matter that was not addressed by the applicant in his evidence before the Tribunal nor, does the affidavit support that the applicant believed that he was prevented from completing presenting his evidence and submissions. 

5. Whilst the applicant does assert in a conclusory form that he was not given a fair hearing because he was not given the opportunity to complete giving his evidence and arguments about compelling reasons, there is no identification by the applicant of the point at which he says he was deprived of that opportunity. A fair reading of the Tribunal’s transcript does not support the proposition that the applicant was deprived of the opportunity to complete giving evidence and arguments. 

6. Notwithstanding the skilled submissions of Mr Dobbie of counsel for the applicant, I am not satisfied that there was any failure to accord the applicant a hearing as required by s.360 of the Act or any denial of procedural fairness of the kind advanced in Ground 1. Ground 1 fails to make out any jurisdictional error.

Conclusion

1. The amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 March 2017