Cheung v Minister for Immigration

[2016] FCCA 1104

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEUNG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1104

Catchwords:
MIGRATION – Visa – partner visa – ‘spouse’ – whether genuine and continuing relationship – no error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5F, 476

Migration Regulations 1994 (Cth), reg.1.15A, cl.820.211(2)

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

Applicant: SZE LAI CHEUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 365 of 2015

Judgment of: Judge Heffernan

Hearing date: 19 April 2016

Date of Last Submission: 19 April 2016

Delivered at: Adelaide

Delivered on: 25 May 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms N Milutinovic for Sparke Helmore Lawyers

ORDERS

1. The Application filed 29 September 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 365 of 2015

SZE LAI CHEUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) seeking an order to quash the decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 7 September 2015. That decision affirmed an earlier decision of a delegate to the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.

2. Ms Cheung is a 45 year old woman and a citizen of China.  She represented herself in these proceedings with the assistance of an interpreter in the Cantonese and English languages.  She raises four grounds in her application as follows:

   “I, Sze Lai Cheung and my husband, Jeffrey Craig Coulls is genuine and continuing spouse relationship basing on the following aspects:

   1.Financial Aspects.  We share our finances jointly, and we have joint Bank Account.

   2.Nature of the Household.  I do housework and cooking, my husband loves my cooking especially his favorite pork dished.  I lived at my husband’s home in Kidman Park from our marriage until June 2015.  In June 2015, the house was sold because of debts arising from my husband’s son’s business failure.  My husband had an appointment with Housing SA to find accommodation for the two of us together.

   3.Social Aspects.  There are three Form 888 from my friends to certify that the spouse relationship is genuine and continuing.

   4.Nature of our commitment.  My husband, Jeffrey Craige Coulls has suffered from some disease, such as Diabetes Mellitus, Ischaemic Heart Disease, Psoriasis.  I look after him in order to avoid any further aggravation.  We take care of each other’s needs physically and emotionally.”

Background

1. Ms Cheung originally came to Australia on a visitor’s (UD) visa granted on 15 February 2011.  She was later granted a Student (Class TU) subclass 572 visa.[1]  That visa was valid between 11 May 2012 and 15 March 2014.  The applicant lodged an application for the visa, which is the subject of these proceedings, on 17 March 2014.[2]  Ms Cheung was sponsored by Mr Jeffrey Coulls, an 86 year old Australian citizen, whom she had married on 27 August 2013.[3]  There were two witnesses to the marriage, Mr Peter Lok and a friend of his, Le Zheng.[4]  Ms Cheung had met Mr Coulls in April 2012 through Mr Lok who was an Adelaide restauranteur who was a mutual friend of theirs.[5]  The applicant has previously been married and was divorced in 2011.

   [1]     Court Book (‘CB’) p 81.

   [2]     CB p 180.

   [3]     CB p 55.

   [4]     CB p 180.

   [5]     CB p 179.

2. Ms Cheung returned to Hong Kong in March 2014 for two weeks.  As I have said, this application was lodged in March 2014.  Ms Cheung claims that she has lived with the sponsor in his family home at Kidman Park from the date of their marriage until June 2015.  That house was sold in June 2015, apparently because the son of the sponsor had incurred business debts.  The sale of the house meant that the sponsor had to move into an elderly citizen’s home in Henley Beach.[6]  Ms Cheung is unable to reside with him there because the minimum age for residents of that home is 65 years.  She claims that she spends her days with the sponsor.  Apparently at the time of the Tribunal hearing, the parties were seeking accommodation through Housing SA to enable them to live under the same roof. 

   [6]     CB p 180.

3. The parties opened a joint bank account in January 2015.  In May 2015, Ms Cheung and her sponsor made a will naming each other as sole beneficiaries.[7]

   [7]     CB p 180.

Tribunal hearing

1. The Tribunal hearing took place on 2 September 2015.  Ms Cheung was represented at that review by a registered migration agent.  The Tribunal heard evidence from both Ms Cheung and her sponsor.  I note that the Tribunal had sent Ms Cheung an appropriate invitation to attend before it to give evidence and present argument.[8]

   [8]     CB p 130.

2. Prior to the Tribunal hearing, the applicant provided further documentation in support of her application, including statutory declarations from her and the sponsor, and Form 888 statutory declarations from two parties.  She also provided a copy of her will, and that of her sponsor, together with the joint bank account statements that had been generated since the opening of the account.

3. In considering the claims made by the applicant, the Tribunal considered the primary criteria for the grant of a subclass 820 visa and noted that cl.820.211(2)(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’) included a requirement that the applicant be a spouse or de facto partner of a person who is an Australian citizen. The Tribunal then considered the definition of ‘spouse’ as defined in s.5F of the Act.[9] It reminded itself that it had to have regard to all of the circumstances of the relationship, including evidence of the financial and social aspects, and the nature of the parties’ household and their mutual commitment to each other by reference to reg.1.15A. It then applied that regulation to assist it in determining whether one or more of the conditions in s.5F(2)(a)-(d) inclusive were met.

   [9] CB p 180 at [18].

4. The Tribunal concluded that the parties were validly married.  It then went on to consider the financial aspects including the lack of evidence of shared household expenses.[10]  The Tribunal noted that neither the applicant nor her sponsor were able to explain why it was that a joint account had not been opened by them until January 2015.[11]  It also noted that no evidence was provided of any intermingling of the finances or mutual assumption of household expenses prior to the beginning of 2015.[12]  The Tribunal also considered the social aspects of the relationship.  The Tribunal noted that the applicant was not able to name siblings of the sponsor, even though she claimed to have met them.  It was acknowledged by the parties that the applicant had never met the sponsor’s two eldest children, but the Tribunal noted that one of those children lived overseas.  The Tribunal found that there was very little evidence that the parties had cohabitated before January 2015, and little evidence of the development of their relationship prior to that.  As a result, it concluded that there was a lack of evidence as to the nature of their claimed relationship overall.[13]  The Tribunal placed weight on the fact that the applicant indicated that whilst she was overseas in 2013 and 2014, she had claimed to have kept in contact with the sponsor frequently.  The sponsor’s evidence contradicted that, in that he said that she had not contacted him when she was overseas in 2013 and had only contacted him a couple of times by telephone when she was overseas in 2014.[14]

   [10]    CB p 181.

   [11]    CB p 181.

   [12]    CB p 181.

   [13]    CB p 182.

   [14]    CB p 182.

5. Having considered the evidence, the Tribunal had concerns as to the credibility of both the applicant and the sponsor.  It regarded the applicant as being, “particularly evasive in her evidence”.[15]  The Tribunal acknowledged that there were some problems in communicating with the applicant through the interpreter but noted that it, “re-asked and re-phrased” questions in order to obtain information and seems to have regarded this as having been a successful approach.[16]

   [15]    CB p 182.

   [16]    CB p 182.

6. The Tribunal concluded that in the circumstances, there was a lack of evidence supporting the application that the evidence of the parties had been contradictory and unconvincing. It concluded that the parties did not have a genuine continuing relationship at the time of the hearing, or at the time of the application. For that reason, it concluded that at the time that the visa application was made, and at the time of Tribunal hearing, the parties were not in a spousal relationship as defined by s.5 of the Act. For this reason, she was unable to meet cl.820.211(2) of the Regulations. It was for that reason that the decision of the delegate was affirmed.

Submissions

1. The applicant made brief oral submissions in support of her application.  She stated that at the time of the Tribunal hearing, she had been a bit upset.  She said that the interpreter was not very clear and she was concerned that some of it was wrong.  She reiterated that she had told the Tribunal that she and her husband did share expenses and that she had described the nature of her relationship with her husband to the Tribunal.  She told the Tribunal about the Form 888 declaration.  In describing the nature of her commitment to her husband, she told the Court that he had a series of serious medical conditions.  She stated that she had been telling the truth to the Tribunal and that they should have considered what she said was the truth.

2. In between the filing of her application and these proceedings, the applicant had changed address and had not provided the first respondent with a notice of her new address.  For this reason, she had not received the written submissions of the first respondent until the day of the hearing.  She read these through with the sponsor who was present.  Given that she had not received those submissions until the day of the hearing, I gave her until close of business on 2 May 2016 in which to provide a written response to the submissions of the first respondent, if she chose to do so.

3. The applicant sought to rely on three affidavits.  The first was dated 28 September 2015 and annexed a copy of the decision of the Tribunal and other documents.  The second was dated 2 November 2015, and included bank statements that were not before the Tribunal, and a letter of explanation.  I have read that document and treated it as an outline of submissions.  (I will refer to it as ‘the first outline’).  The third affidavit, dated 11 November 2015, included information relating to her husband’s recent medical conditions.  That information post-dates the decision of the Tribunal.  These materials were received without objection from the first respondent, subject to admissibility and relevance.  I have considered these materials but find that I am unable to take them into account for the purpose of this application.  It can hardly be seen to be an error, let alone a jurisdictional error, for the Tribunal to have failed to take into account documents that were either not before it, or which were not in existence at the time of the Tribunal hearing.  I have disregarded those materials with the exception of the first outline.

4. The applicant filed a written outline of submissions after the hearing (‘the second outline’).  I have considered that document.  The applicant submits that the Tribunal failed to accord the financial aspects, the nature of the household, and the social aspects of the relationship, sufficient weight.  This is not a matter that establishes jurisdictional error.  The question of the weight to be given to any aspect of the evidence is entirely a matter for the Tribunal.[17]  A large part of the second outline was an attempt to re-agitate the merits of the application.  The submission alleges a failure on the part of the Tribunal to consider that the marriage was ‘registered’ on 27 August 2013.  This was considered by the Tribunal.[18]  It alleges a failure to consider the Form 888 declarations.  This was also taken into account by the Tribunal.[19]  Whilst the Tribunal did not summarize all of that material in detail, it was not required to.  The applicant submitted that the Tribunal failed to consider the inability of the parties to live with each other because the sponsor is in an aged care facility.  This too was addressed by the Tribunal.[20]

   [17]    Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297.

   [18] CB p 180 at [12].

   [19] CB p 181 at [28].

   [20] CB p 180 at [15].

5. The second outline also complains that the Tribunal failed to take into account the medical conditions suffered by the sponsor.  There appears to have been only limited evidence of the sponsor’s ill health presented to the Tribunal.  The sponsor refers to it in a Statutory Declaration.[21]  The applicant referred to it in identical terms in her Statutory Declaration.[22]  The Tribunal did not specifically refer to this in its Decision Record, but it did specifically address the nature of their commitment to each other in these terms:

   “The Tribunal has had regard to the evidence provided relating to the nature of persons’ commitment to each other, including the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long-term.”[23]

   [21]    CB pp 136-137.

   [22]    CB pp 139-140.

   [23] CP p 182 at [37].

6. The transcript of the proceedings has not been put on file by either the applicant or the first respondent, and so it is not possible to determine how much prominence this matter was given in oral evidence.  However, where the reasons of the Tribunal are detailed and lucidly expressed, as in this case, I am not prepared to draw an inference that this issue was not taken into account.  Rather, it seems simply to have assumed less prominence that the applicant now seeks to attribute to it.

7. In any event, matters going to the sponsor’s health would not have caused the Tribunal to make a different decision.  The Tribunal did not accept the evidence of the applicant or the sponsor about the nature of the relationship between them.  It made adverse credit findings against the applicant and its’ rejection of the genuine spousal relationship could not have been more clear:

   “Based on the paucity of the evidence and the contradictory nature of the evidence provided, I am not satisfied that the parties are in a genuine and continuing relationship.  I further do not consider that they were in a genuine and continuing relationship at the time of application.”[24]

   [24] CB p 182 at [42].

8. The applicant’s second outline annexed a letter, dated 28 April 2016, from the sponsor’s doctor about his medical conditions.  There is also a brief note written by the sponsor.  These materials were not before the Tribunal and I have not had regard to them.

9. Finally, the second outline contends that the decision of the Tribunal was so unreasonable that no rational or logical decision-maker could have arrived at the same conclusion.  I reject that submission and I note the comments of the Full Court of the Federal Court, that courts should guard against the gradual slide into a merits review; merits arguments should not be “shoe horned” into concepts of unreasonableness and irrationality.[25]

   [25]    Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57 at [17].

10. The first respondent submitted that the grounds put forward by the applicant do not establish that there was any jurisdictional error committed by the Tribunal. It submits that the grounds amount to a request for an impermissible merits review. It further submitted that the Tribunal had correctly directed itself as to the legislative framework, including the primary criteria for the grant of the relevant visa, and the definition of spouse, as defined in s.5 of the Act, which was the salient issue before the Tribunal. It submits that having considered and applied all of the relevant criteria, the findings of the Tribunal were all open to it on the evidence. Ultimately, the applicant was voicing her disagreement with the merits of the Tribunal’s conclusions and for that reason, her application should be dismissed.

Consideration

1. None of the grounds put forward by the applicant establish a basis for judicial review.  They do not demonstrate any jurisdictional error having been made by the Tribunal.  In considering both the grounds and the oral submissions of the applicant, together with her written submissions, it is apparent that what the applicant takes issue with is the finding of the Tribunal itself.  She is extremely dissatisfied with the conclusion reached by the Tribunal.  But this is a complaint about the merits and not a complaint that is capable of establishing jurisdictional error.  This Court is not permitted to re-agitate the facts of the matter and substitute the finding of the Tribunal for its own.  Mere preference for a different finding, is not a sufficient basis for this Court to interfere with the decision of the Tribunal.  The observations of the Court in NAHI v The Minister for Immigration & Multicultural & Indigenous Affairs[26] are appropriate in this case:

   “… the appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [26] [2004] FCAFC 10.

2. The complaint made by the applicant that the Tribunal failed to take into account a relevant consideration, namely the Form 888 declarations from her friend, cannot be sustained.  As I have noted, the Tribunal clearly considered that material and took it into account.  The ongoing nature of the commitment between the applicant and the sponsor was clearly at the forefront of the Tribunal’s mind in considering her application. 

3. Finally, I note the applicant’s claims that there was some difficulty in making herself understood to the interpreter during the hearing.  The Tribunal itself referred to this.  It was for that reason, that it took a flexible approach to the questions it asked and persisted in rephrasing questions in order to illicit information from the applicant.  I note that the applicant was represented by a registered migration agent at the hearing, but it does not appear from the face of the record that any complaint was made, either by the applicant herself, or her representative, to the effect that her ability to communicate had been so impaired that it was interfering or affecting the course of proceedings.  The applicant did not identify any aspect of her evidence or arguments presented to the Tribunal that she said had been compromised by an inability to effectively communicate through the interpreter.  The transcript of the Tribunal’s proceedings was not tendered by the applicant, nor is there any evidence from an independent interpreter which identifies any mistranslations or non-translations in the evidence.  It is well established that mistranslation or non-translation can result in jurisdictional error in that it can render the Tribunal hearing unfair.  It would be necessary for an applicant to demonstrate that any mistranslation or non-translation was material in the sense that it had the ability to affect the outcome of proceedings.[28]  It is not apparent to me that the proceedings before the Tribunal were affected in this way.

   [28]    WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131.

1. I dismiss all grounds in the application.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 25 May 2016

[27] Ibid at [10].