CHIA v Minister for Immigration
[2004] FMCA 122
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHIA v MINISTER FOR IMMIGRATION | [2004] FMCA 122 |
| MIGRATION – Application for review of a decision of Migration Review Tribunal affirming a decision refusing to grant an extended eligibility (temporary) (class TK) visa, spouse and a general residence visa – whether the Tribunal failed to give proper and realistic considerations to the merits of the applicant’s case – whether the Tribunal acted in breach of section 425 of the Migration Act 1958 by denying the applicant the opportunity to appear and give evidence on an issue the Tribunal itself considered to be critical to the outcome of the case – whether the Tribunal failed to give the applicant the opportunity to explain written comments that the Tribunal had itself requested following the hearing – whether the Tribunal failed to observe the provisions of section 368 of the Act – whether the Tribunal failed to take into account relevant material to support the applicant’s claim to be the de-facto spouse of the nominator – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.359A, 359C, 368, 474, 475, 476, 486
Migration Legislation (Judicial Review) Amendment Act 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994, Regs 1.15A, 1.15A(3)
Federal Court Rules
Federal Magistrates Court Rules
Rezaei v Minister for Immigration andMulticultural Affairs [2001] FCA 1294
Minister for Aboriginal Affairs v Peko Walsend Ltd (1986) 162 CLR 29
Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 1304
Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036 Ragunathan v Minister for Immigration and Multicultural Affairs [2001] FCA 1142
Qu v Minister for Immigration and Multicultural Affairs (2001) FCA 1299
Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) FCAFC 140
Lumanolovska v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1321
| Applicant: | LUIANG CHIA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ781 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 20 February 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Belbruno |
| Solicitors for the Applicant: | Joseph Belbruno |
| Counsel for the Respondent: | Mr Mosely |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
In accordance with my reasons, I order that the Application be dismissed.
The Applicant pay the Respondent’s costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules having regard to Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ781 of 2002
| LUIANG CHIA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This application seeks a review of the Migration Review Tribunal ("the Tribunal") made on 14 March 2003 affirming a decision of a delegate of the Minister to refuse the applicant an extended eligibility (temporary) (class TK) visa, sub class 820 (spouse) visa and a "general" (residence) (class AS) visa, sub class 801 (spouse).
The application was filed and seeks to invoke to jurisdiction of the Court "by reason of s.486 of the Migration Act 1958 (Cth) (the Act) in the accrued jurisdiction of the Court". The contentions filed on behalf of the applicant rely on ss.475 and 476 of the Act as found in the Court jurisdiction to review the decision of the Tribunal as a "judicially reviewable decision". The respondent accepted that the Court has jurisdiction to review decisions of the Tribunal under the Act in its current form but pointed out that no basis for the Court's jurisdiction is set out in the application as the provisions relied upon were repealed in the Migration Legislation (Judicial Review) Amendment Act 2001 (Cth) which commenced on 2 October 2001 and introduced a new Part VIII into the Act.
The respondent did not oppose leave being given and at the commencement of the hearing leave was given to the applicant orally to amend the application to seek relief pursuant to s.39B of the Judiciary Act 1903 (Cth).
The applicant arrived in Australia on 26 October 1989 as the holder of a visitor visa valid until 26 April 1990. She was in Australia illegally until she was located and detained by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") in early 1999. On 26 March 1999 the applicant applied for a spouse visa on the basis of her de facto relationship with Chi Minh Chuong (the nominator) who is an Australia citizen.
The relevant law
The relevant law to be considered is Regulation 1.15A, item 1211 of Schedule 1 to the regulations, item 1119 of Schedule 1 to the Regulations with subclass 820 schedule 2 to the Regulations.
Subclass 820 relates to spouse visas and sets out criteria to be satisfied at the time of application and at the time of decision.
The criteria to be satisfied at the time of application in this case is as follows:
(1) 8.20.211(1) the applicant:
is not the holder of a subclass 711 (transit) visa;
meets the requirements of subclass (2) (3) (4) (5) (6) (7) (8) or (9).
(2) an applicant meets the requirements of this subclass if:
(a) the applicant is the spouse of a person who
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)..... and; (c) the applicant is nominated by that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(b) in the case of an applicant who is not the holder of a substantive visa - either:
(i) the applicant;
(A) ..... ; and
(B) ..... ; or
(ii)the applicant satisfies schedule 3, criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criterion.
Schedule 3 relevantly provides; 3001 (1) the application is validly made within 28 days after the relevant day (within the meaning of subclause (2)) For the purpose of subclause (1) under clause 3002 the relevant day, in relation to an applicant is: (a) ..... or (b) if the applicant became an illegal immigrant before 1 September 1994 (whether or not clause 6002 in schedule 6 of the Migration (1993) regulations applied or s 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or
(c) .....
3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001 (2).
Regulation 1.15A which relates to spouse visas relevantly says at 1.15A(2):
Persons who are in a de facto relationship if:
(a) they:
(i) are of opposite sex; and
(ii) are not married to each other under a marriage that
is recognised as valid for the purposes of the Act; and
(iii) are not within the relationship that is a prohibited
relationship for the purposes of subsection 23B(2) of
the Marriage Act 1961; and
(b) they are of full age, that is:
(i) if either of the persons who is domiciled in
Australia - both of them have turned 18; or
(ii) if neither of the persons is domiciled in Australia -
both of them have turned 16; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as
husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and
continuing;
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis and (b) subject to subparagraph (e) and sub regulation 2A, or either of them is an applicant for a permanent visa, a partner (provisional) class (class US) visa or a partner (temporary) (class UK) visa - the Minister is satisfied, that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of their relationship:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing;
and
(iii) they had:
(A) been living together; or
(B) not been living separately and apart on a permanent basis.
In forming an opinion whether two persons are in a married relationship or in a de facto relationship pursuant to Regulation 1.15A(3) the Act requires that the Minister must have regard to all the circumstances of the relationship including in particular
paragraph 8.20.221(1)(a) which requires the applicant to continue to meet the requirements necessary to be met at the time of application, to be satisfied in addition, at the time of decision. Thus the applicant was required to establish that she was in a de facto relationship with the nominator as required by the legislation described,both at the time of application and at the time of decision.
The Tribunal's decision
The Tribunal had before it a departmental file. The Tribunal wrote to the applicant on 14 June 2002 seeking further information including a letter from Centrelink regarding the date the nominator advised that agency of the commencement of the de facto relationship with the visa applicant and a letter from the Housing Commission confirming the nominator's residence at Napier Street. On 16 July 2002 further documents were submitted to the Tribunal[1].
[1] See Court Book, page 208.
On 14 August 2002 further documents were submitted[2]. The hearing before the Tribunal took place on 15 August 2002 when oral evidence was given by the visa applicant, the nominator and the nominator's daughter.
[2] See Court Book, page 208.
On 21 and 26 August 2002 (after the hearing) the Tribunal received further information and submissions from the applicant's Migration Agent[3], and further information was received on 6 September 2002,
30 August 2002, 2 October 2002 and 7 November 2002[4].
[3] See Court Book, page 208.
[4] See Court Book, page 209.
The Tribunal wrote to the visa applicant pursuant to s.359A on
26 November 2002 in relation to documents received from Centrelink on 30 August 2002. On 23 December 2002 the migration agent sought an extension of time in which to respond to the information disclosed on 26 November 2002 and on 9 January the Tribunal wrote granting extension of time. No response was received in the prescribed time. On 14 March 2003 the Tribunal handed down its decision. The Tribunal affirmed the decision of the Minister's delegate not to grant a visa to the applicant. The Tribunal was not satisfied, after considering the totality of the evidence that at the time of application and decision, the applicant and nominator had a mutual commitment to a shared life as husband and wife to the exclusion of all others and a relationship that is genuine and continuing. Thus the Tribunal found at the time of application and decision, the visa applicant was not the spouse of the nominator and failed to meet the criteria in 8.20.211 and 8.20.221.
The Tribunal considered the matters in Regulation 1.15A and made the following findings:
Financial aspects of the relationship
The Tribunal found that there was no evidence of jointly owned assets or jointly incurred liabilities but accepted the applicant's submission that this was due to the financial situation of the applicant and nominator. The Tribunal noted that the applicant and nominator gave minimal and inconsistent evidence on how the household finances were shared between the occupants over the period of planned cohabitation and noted that the applicant indicated three occupants (the nominator, the applicant and their daughter) paid the expenses depending on who had the money and that the nominator stated that he paid for the electricity, his daughter paid the rent and the visa applicant paid for the food.
The nature of the household
The Tribunal noted that the visa applicant and nominator claimed to have lived in a de facto relationship since 1991 at Napier Street, Fitzroy. They indicated to the Tribunal that they shared a bedroom since 1991 and that they provided care for the nominator's daughter's children. The Tribunal took into account the submission from the visa applicant that she kept a low profile because of her unlawful status but noted that there was no evidence submitted in support of her claim that she was living in a de facto relationship with the nominator from 1991 to 26 March 1999 when the application was lodged.
The Tribunal further noted that there was no evidence relating to the period after the lodgment of the visa application to the date of hearing of utility accounts in joint names of the visa applicant and the nominator.
The Tribunal noted in particular that Centrelink was advised by the nominator that he was in a de facto relationship with the applicant from 13 September 2001 and that his relationship with his wife (from whom he is not divorced) had ended on 12 December 2001. The income statements of the nominator's wife and the documentation from Centrelink indicated that she was in receipt of partner allowance as the nominator's spouse. The notification to Centrelink occurred after the interview with the delegate and two and a half years after the visa applicant ceased to be unlawful in Australia.
The Tribunal noted that while the claim being made was that the nominator cohabited with the visa applicant at Napier Street from June 1991, the information given by the nominator to the Department of Health and Family Services Aged Care assessment officer, indicated that in January 1999 the nominator was living with his family in Ascot Vale and would be moving to Napier Street to care full time for his mother. Centrelink's file note dated 4 March 1999 indicated that the nominator was on a carer pension caring for his mother and that his partner lived in Ascot Vale. Centrelink records of the nominator showed him living at Ascot Vale until March 1999 after which his address was recorded at Napier Street. The nominator had informed these authorities that he was moving to Napier Street in 1999 "for the purpose of caring for his mother".
The visa applicant and the nominator did not provide a statement from the Housing Commission as requested by the Tribunal. The nominator advised in the visa applicant that he and his wife were given a home by the Housing Commission in 1987. The Tribunal concluded that the nominator and his wife continued to be registered by the Housing Commission in relation to the Ascot Vale property.
The Tribunal noted that copies of receipts for electrical goods dated February 2001 had been submitted in support of the applicant but the names of the visa applicant and the nominator were not written by the same hand. The Tribunal noted that a letter from Dr Chan indicated that the visa applicant was his patient and had been registered at Napier Street since 1998. Whilst he stated he had seen the visa applicant and the nominator for consultations there was no information on when this occurred or if the consultation was in connection with the care of the nominator's mother who the visa applicant cared for.
Social aspects of the relationship
The Tribunal noted that photographs of the visa applicant and the nominator together and with other persons had been submitted. Statutory declarations were submitted by the nominator's daughter and by other persons regarding their relationship. The statutory declaration of Cheung Wai Lin indicated that the visa applicant and nominator were living in a de facto relationship prior to 1991, which was not submitted by the visa applicant and nominator.
The visa applicant indicated at the hearing that only the people living in her building and the persons attending the hearing knew of their relationship. In a written submission dated August 2002 it was stated that the relationship was common knowledge among the visa applicant's workmates, employers and friends in the Fitzroy area.
The Tribunal noted that the visa applicant gave inconsistent evidence regarding visits by the nominator's children.
The nature of the person's commitment to each other
The Tribunal noted that regarding emotional support the visa applicant stated that the nominator cared for her when she was ill and she cared for the nominator when he had a back problem. Two reports from a psychologist were submitted regarding the relationship between the visa applicant and nominator.
Other issues
The Tribunal set out its concerns about the credibility of the nominator and the visa applicant and in particular:
i)
it was clear the nominator provided false information in his statutory declaration dated May 1999 regarding his advice to Centrelink about the de facto relationship with visa applicant and he effect of this advice on the rate of the Centrelink payments. Centrelink was advised that the de facto relationship with the visa applicant commenced on
13 September 2001;
ii)the evidence of the visa applicant and nominator at the hearing regarding their first meeting was inconsistent and evidence at the hearing was inconsistent with information given in the visa application; and
iii)the visa applicant had not given consistent information on her own marital situation in her visa application she claimed never to have married and to have had a de facto relationship prior to coming to Australia. In a subsequent submission prepared by her agent she said that she had a child who was in Malaysia. At the hearing she gave evidence that she had married. The Tribunal found that prior to the detention of the visa applicant and the lodgment of the visa application the visa applicant commenced working as a carer to the nominator's parents and resided at Napier Street. The Tribunal was not satisfied that when the nominator changed his address to Napier Street in relation to his claim for carer payments that his relationship with his wife was at an end. Hence the Tribunal did not accept that the applicant had ever been in a de facto relationship with the nominator and thus was not in a de facto relationship with him at the time of application, nor by inference at the time of decision.
Applicant's claims
Obligation to consider
The applicant contends that the Tribunal was required to give proper and realistic consideration to the merits of the applicant's case. The claim was not pressed and no submissions were addressed to it at the hearing.
Denial of opportunity to appear and give evidence
The applicant contends that the Tribunal acted in breach of s.425 of the Act by denying the applicant "the opportunity to appear and give evidence on an issue the Tribunal itself considered to be critical to the outcome of the case" and further contended that she was denied an opportunity to "explain written comments that the Tribunal had itself requested after the hearing". No further submissions were addressed at the hearing to this ground. More importantly, it is clear that the applicant attended the hearing and that further material was submitted subsequent to the hearing. On 26 November 2002 the Tribunal wrote to the applicant inviting comment on material received from Centrelink about the relationship of the nominator with his dejeuner spouse and as required by s.359A of the Act, the applicant was given 28 days from the receipt of the letter to comment on information. The applicant requested an extension of time until 31 January 2003 to comment. That extension was given and nothing further was received from the applicant. On 14 March 2003 the Tribunal proceeded to make a decision in the absence of the applicant's response, as provided for in s.359C of the Act. As no further argument was directed to this ground the applicant's contention that the Tribunal failed to comply with its obligations to allow the applicant an opportunity to appear and give evidence is not sustainable.
Breach of section 368
This was the main ground upon which the applicant relied and the applicant's contentions complain that the Tribunal failed to observe the procedures under s.368 of the Act:
In connection with the making of the decision
In that:
(a)the Tribunal failed to prepare such a statement of reasons as to comply with the Act; or
(b)the Tribunal failed to act according to substantial justice and merits of the case as required by the Act
The contention of the applicant is that the Tribunal was required to look at the criteria in regulations and in particular Regulation 1.15A(3). The applicant contends that the Tribunal failed to carry out this task insofar as it only addressed the sub headings described, and secondly that its conclusion, evidenced by paragraph 93 failed to comply with the Act in that it is not sufficient to come to a general conclusion as the Tribunal did without considering and balancing each of the relevant matters in Regulation 1.15A(3) in coming to its decision.
In support of his contention the applicant relied upon the decision of Gray J in Qu v Minister for Immigration and Multicultural Affairs (2001) FCA 1299 to support his argument that the Tribunal had not carried out the balancing exercise required and that each and every aspect of the criteria was not considered and balanced.
However in Lumanolovska v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1321 before Gray J, the applicant's counsel had made a similar submission. Relevantly, in Lumanolovska, Gray J was considering the application for both a general (residence) (class AS) visa and an extended eligibility (temporary) (class TA) visa. Thus the criteria for the visa were those to be found in subclass 801 in Schedule 2 of the Migration Regulations 1994 (“the Regulations”) and required criteria to be satisfied at the time of the decision pursuant to item 801.22
In particular his Honour was dealing with a consideration of whether the applicant was the spouse of the nominator at the time when it made its decision. In doing so the Tribunal was required to consider the factors in Regulation 1.15A(3). In expressing its finding in relation to the application the Tribunal did so under a number of headings which reflected factors to be found in Regulation 1.15A(3).
It is clear from a reading of that decision that counsel in that proceeding who also appeared in this matter relied on the judgment of Gray J in Qu v Minister for Immigration and Multicultural and Indigenous Affairs (supra) as cited in the judgment of his Honour in Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) FCAFC 140 at [16]. It is clear that the contention of the applicant was the same, namely that the Tribunal had failed to engage in a necessary balancing exercise. His honour said at [15]:
Both Qu and Awan concern different provisions of the Migration Regulations. The provisions there in issue concerned a single criterion, in the application of which the decision maker was required to take into account a number of factors. The decision maker in those cases attributed each of those factors as if it were a separate criterion and had regarded the case as concluded the wife's failure to satisfy one of those factors. It is plain that the Tribunal has not done anything of the kind in the present case. The Tribunal has considered all the factors that regulation 1.15A(3) required it to consider and has addressed itself to the particular criterion, namely, whether the relationship between the applicant and the nominator was such that one could be described as the spouse of the other at the time when the Tribunal made its decision.
That situation is on all fours with the present. The criterion to be addressed was whether the Tribunal was satisfied at the time of application and decision that the visa applicant and nominator had a mutual commitment to a shared life as husband and wife to the exclusion of all others in a relationship that was genuine and continuing. The Tribunal found that they did not and considered the relevant factors that Regulation 1.15A(3) required it to consider.
The findings of the Tribunal are not lengthy but they cover the relevant matters. One of the reasons that the findings are not lengthy is that the Tribunal set out at some length the material in support of the applicant's claim, including the evidence of the applicant and witnesses. The material in support of the application is replete with inconsistencies, of which the Tribunal is entitled to refer to only a few.
It should not be forgotten that under the subheading other issues the Tribunal noted its concerns about the credibility of the nominator and the visa applicant. In particular the fact that the nominator provided false information in his statutory declaration dated May 1999 regarding his advice to Centrelink about the de facto relationship with the visa applicant, and the inconsistency between the information provided to Centrelink and (that the relationship commenced in December 2001) and the applicant's case as described by her and the nominator remains unanswered.
Failure to take into account relevant material
The applicant contended that the Tribunal was swayed by "the official record of the parties lives as kept by government agencies such as Centrelink or the Department of Health" whilst disregarding independent bodies of documentary evidence in favour of the applicants coming from their treating doctor, a psychologist and witnesses.
This argument can be fairly shortly disposed of. First, the Tribunal was required to consider the criteria for a spouse visa and did so. Secondly, in considering whether the parties were living together and had a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them was genuine and continuing, took into account the matters in Regulation 1.15A(3). In doing so it considered the evidence and weighed up the various matters. In considering the evidence the Tribunal was entitled to consider all of the material before it and to give such weight as it considered proper to the material. In this case, on the issue of credit, the Tribunal was unconvinced by a number of inconsistencies not the least of which, but not the only ones, were the accounts of the nominator on crucial matters to Centrelink, and other government agencies. Some of the matters the applicant complains were not considered sufficiently either had little probative value in relation to the issues, such as the letter from Dr Chan[5] or were themselves internally inconsistent, such as the statutory declaration from the nominator's daughter[6].
[5] See Court Book, page 217.
[6] See Court Book, page 217.
Secondly, even if the Court considered that there was a piece of evidence which was relevant "in the evidential or probative sense" that could not be seen to have been weighed or discussed, it would not amount to jurisdictional error. In Rezaei v Minister for Immigration andMulticultural Affairs [2001] FCA 1294, a decision of Alsop J, his Honour said at paragraph [57]:
Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the Court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ”Relevant” for this purpose means that the decision maker is bound by statute or law to take this into account; Minister for Aboriginal Affairs v Peko Walsend Ltd (1986) 162 CLR 29 at 39-42; Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707, 739 at [131 132] (special leave refused 20 August 2001); see generally Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196 at [79]; Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 1304 at [46-55]; Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036 at [44-50] and Ragunathan v Minister for Immigration and Multicultural Affairs [2001] FCA 1142 at [58-65].
In Yusuf (supra), McHugh, Gummow and Haine, Gaudron JJ and Gleeson CJ agreed said this at paragraph [74]:
What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision maker has properly applied the law. They are not grounds that are essentially concerned with the process of making a particular finding of fact upon which the decision maker acts.
The applicant has not demonstrated that there is any jurisdictional error on the part of the Tribunal and no evidence was led to impugn the decision under s.474 of the Act. Thus the application must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
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