Chen v Minister for Immigration
[2016] FCCA 1122
•11 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1122 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359A, 359B, 359C, 360, 363A, 379A, 379B, 379C, 379B |
| Cases cited: Applicant S146 of 2003 v Minister of Immigration [2006] FCA 502 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 |
| Applicant: | BING CHEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2633 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2016 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2633 of 2015
| BING CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 24 September 2015, seeking review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 27 August 2015. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant, Mr Chen, a partner temporary (class UK) visa.
Background facts relating to this matter are set out in the Minster’s outline of submissions, filed on 2 May 2016.
On 18 December 2012, Mr Chen applied for a Partner (subclass UK) visa[1]. He was sponsored for that visa by his wife (an Australian citizen), whom he married on 27 October 2012[2]. Both Mr Chen and his sponsor appointed a migration agent to assist them in connection with the visa application[3]. Mr Chen and the sponsor provided brief statements in relation to their relationship[4], two statutory declarations by supporting witnesses[5] and copies of photographs[6].
[1] Court Book (CB) 1-25
[2] CB 26-35, CB 55
[3] CB 36-41
[4] CB 53-54
[5] CB 42-47
[6] CB 68-71
Mr Chen subsequently provided further documents in support of the claimed relationship on 10 July 2013[7], 27 October 2013[8] and 3 January 2014[9]. Mr Chen also provided further documents on 30 April 2014 in response to a request from the Department for additional information[10].
[7] CB 86-89
[8] CB 90-98
[9] CB 99-106
[10] CB 117-121
On 13 June 2014, the delegate refused to grant the visa on the basis that Mr Chen did not satisfy clause 820.211(2)(d) because he did not meet the Schedule 3 criteria and there were no compelling reasons to waive these criteria[11].
[11] CB 127-139
The Tribunal
On 2 July 2014, Mr Chen lodged an application for review of the delegate’s decision and appointed a migration agent as his representative[12].
[12] CB 140-149
By letter dated 10 July 2015, the Tribunal wrote to Mr Chen pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) inviting him to comment on or respond to particulars of information before it[13]. The letter invited Mr Chen to comment on particulars of information that had been provided confidentially on 6 October 2014 and 12 January 2015 which alleged, amongst other things, that Mr Chen and his sponsor were not in a genuine relationship. The letter also invited him to comment on or respond to particulars of information contained in the delegate’s decision about the genuineness of the relationship, as Mr Chen had only provided page one of the delegate’s decision to the Tribunal. The invitation complied with ss.359A(1) and 359B of the Migration Act and explained the relevance of the information to its assessment of the matters in regulation 1.15A of the Migration Regulations 1994 (Cth) (Regulations), its determination of whether they were in a genuine and continuing relationship and accordingly whether Mr Chen met the criteria for the grant of the partner visa.
[13] CB 164-169
This letter also complied with the requirements of s.379A and s.379G(1) of the Migration Act as it was sent by email to Mr Chen’s authorised recipient[14]. By reason of s.379C(5), Mr Chen is taken to have received the letter that same day. Mr Chen did not respond to the invitation by 24 July 2015 (or at any other time up to 27 August 2015), being the period prescribed by s.359B(2) of the Migration Act and regulation 4.17(4) of the Regulations[15].
[14] CB 163
[15] CB 170; CB 175 at [6]
In the circumstances, the Tribunal exercised its discretion under s.359C of the Migration Act and made a decision on the review without taking any further action to obtain the information[16].
[16] CB 175 at [5]-[6]
In addition, as Mr Chen failed to respond to the s.359A invitation, s.359C(2) applied. The combined effect of s.360(3) and s.363A was that the Tribunal did not have power to permit Mr Chen to appear at an oral hearing[17]. As the Tribunal noted[18], Mr Chen was not entitled to appear before the Tribunal.
[17] Hasran v Minister for Immigration [2010] FCAFC 40
[18] at CB 175 at [5]
The Tribunal had regard to the evidence provided to the Minister’s Department in December 2012 and in 2013, as well as the response to the Department’s request for further information in April 2014, but found that Mr Chen had not provided any evidence since the time of the delegate’s decision to demonstrate that he and his sponsor were currently in a spousal relationship[19]. The Tribunal found that there was no evidence before the Tribunal from April 2014 and onwards concerning the matters in regulation 1.15A(3). Accordingly, the Tribunal was not satisfied that Mr Chen and his sponsor were in a spousal relationship at the time of its decision and it concluded that Mr Chen did not meet the requirements of clause 820.221[20]. In light of this finding, the Tribunal correctly found that it was unnecessary for it to further consider whether he satisfied clause 820.211 at the time of application[21].
[19] CB 175-176 at [8]
[20] CB 176 at [9]
[21] CB 176 at [11]
This matter came before a registrar for procedural directions on 5 November 2013. Mr Chen attended, with the assistance of an interpreter, and the registrar made orders by consent to prepare the matter for a show cause hearing at 3.30pm on 10 May 2016. That listing was changed and my associate wrote to the parties, including Mr Chen, at his nominated address for service, by a letter dated 11 April 2016, advising that the show cause hearing would take place at 9.30am on 11 May 2016.
Mr Chen was invited to attend the Court at level 13 80 William Street in Sydney. No response to that letter was received. Earlier, on 2 May 2016, the Minister’s solicitors wrote to Mr Chen at his nominated address for service, to provide a copy of the Minister’s submissions. The letter reminded him of the hearing this morning at 9.30am. The letter warned Mr Chen that if he failed to attend, the Minister would seek dismissal of the application, with costs. No response to that letter was received.
There was no appearance by, or on behalf of, Mr Chen when the matter was called this morning. The matter has been called twice and on each occasion, there was no answer to the call. An attempt was made to telephone Mr Chen on his nominated mobile telephone number before I came on the bench, with the assistance of the Mandarin interpreter booked for today’s hearing. That attempt was unsuccessful. The call was diverted to a voice message in the Mandarin language, which advised of service unavailability to the nominated number. There has been no record of any inquiry by Mr Chen, either in respect of the original listing yesterday afternoon or the revised listing this morning.
Given the circumstances and the history of the matter before the Tribunal, I have decided to proceed with today’s show cause hearing, in the absence of Mr Chen. I have before me as evidence a short affidavit filed with the show cause application. I receive paragraph 3 of that affidavit as a submission, and the balance as evidence. I also have before me as evidence the court book filed by the Minister on 4 December 2015.
Only the Minister prepared written submissions in accordance with the procedural orders made by the registrar.
The Tribunal’s reasons, at [3] to [6][22] detail the failure of Mr Chen to respond to the Tribunal’s invitation to comment and the consequences of that failure:
On 10 July 2015, the Tribunal wrote to the applicant pursuant to section 359A of the Act, inviting him to comment on or respond to information by 24 July 2015. The Tribunal has not received a response to that invitation as of the date of this decision.
The Tribunal is satisfied that the applicant was sent an invitation to comment on information under section 359A of the Act. The invitation, dated 10 July 2015, was sent to the review applicant’s authorised recipient, at the last address for serve provided by the applicant in connection with his application for review.
Where an applicant is invited to comment on information under section 359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (subsection 359C(2)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A).
The Tribunal has found that the applicant did not provide comments within the prescribed period. The Tribunal will therefore proceed to make a decision on the review without taking further action to obtain comments from the applicant and without inviting the applicant to appear before the Tribunal.
[22] CB 175
There was nothing unreasonable in the Tribunal’s decision to exercise its discretion[23]. In the circumstances facing the Tribunal, there was simply insufficient material to support a favourable decision. In my opinion, the outcome before the Tribunal was a consequence of Mr Chen’s failure to correspond with the Tribunal.
[23] Minister for Immigration v Li (2013) 297 ALR 225 at [63]
There is no error in the Tribunal’s approach or findings. There is no jurisdictional error on the part of a Tribunal where it finds there is a lack of information due to the applicant’s failure to engage in the review procedures[24]. This is a matter where the inevitable consequence of Mr Chen’s failure to respond to the s.359A invitation, or provide any additional evidence about the nature of his relationship, was that the decision under review was affirmed[25].
[24] Applicant S146 of 2003 v Minister of Immigration [2006] FCA 502; SZDXC v Minister for Immigration [2005] FCA 1306
[25] NAVX vMinister for Immigration [2004] FCAFC 287 at [5]
Further, in my opinion, the grounds of review, advanced in the application by Mr Chen lack any substance. The Minister’s submissions deal with those grounds.
Ground 1 of the application claims that Mr Chen “relied” on the Tribunal and did not know the process to provide evidence. For the reasons discussed above, the Tribunal was correct to not proceed with a hearing after Mr Chen failed to respond to its s.359A invitation. Mr Chen has not provided any explanation for his failure to respond to that invitation. Further, Mr Chen was represented by a migration agent from whom he could have obtained advice about the Tribunal’s procedures.
This ground also alleges that Mr Chen had already provided “strong evidence” that his relationship was genuine. Contrary to this assertion, Mr Chen did not provide the Tribunal with any evidence about the nature of his relationship at the time of its decision. As the Tribunal noted, it had no evidence before it from April 2014 onwards. It was up to Mr Chen to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction[26].
[26] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]
Ground 2 alleges that Mr Chen has “compelling circumstances” that justify waiving the Schedule 3 criteria. This ground is misconceived as although the delegate found that Mr Chen did not satisfy the Schedule 3 criteria, this was not the basis for the Tribunal’s decision. In any event, this ground is no more than an impermissible invitation for the Court to review the merits of the Tribunal’s decision[27].
[27] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272
I conclude that Mr Chen is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with Court scale. I will order that the applicant pay the first respondent’s costs and disbursements of an incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 12 May 2016
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