Chow v Minister For Immigration and BORDER PROTECTION and Anor (No.2)
[2015] FCCA 471
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOW v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.2) | [2015] FCCA 471 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether application has raised an arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.359AA, 360 Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13 |
| Cases Cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | WAI MEI CHOW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3507 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 February 2015 |
| Date of Last Submission: | 20 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3507 of 2014
| WAI MEI CHOW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 17 December 2014, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal dated 20 November 2014 (“the MRT”).
On 12 February 2015, the applicant attended a directions hearing before a registrar of the Court.
The applicant confirmed that she wished to continue with the application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 18 February 2015. The applicant was also directed to file and serve written submissions in support of the grounds of her application by 18 February 2015.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant was unrepresented before the Court this morning, although had the assistance of a Cantonese interpreter.
The applicant read an affidavit filed by her on 18 February 2015, which annexed a medical certificate in the following terms:
“16/02/2015
To whom it may concer (sic),
Dear Sir/Madam,
re: Mr Humberto Pinto -06/05/1946
I am the treating practitioner for Mr Pinto who suffers from multiple medical and psychological illnesses which he requires the care of his wife Mrs Wei Mei Chow.
Kind Regards,
Dr Madgy Girgis
Macquarie Mall Medical ”
The applicant confirmed to the Court this morning that she had not otherwise filed any further documents in accordance with my directions or otherwise.
The applicant’s application for judicial review, filed on 17 December 2014, stated the ground of review as follows:
“1. I have been in genuine relationship with my partner therefore MRT made error to dismiss my application for review.”
The ground of the application was interpreted for the applicant and the applicant was invited to make submissions in support of the ground.
I understand the applicant’s submissions in support of her ground were to the effect that she was not aware of the various issues that were referred to by the Tribunal in its decision record and that she had not had an opportunity to reply to those concerns. Otherwise, the applicant disagreed with the findings of the MRT that she and the sponsor were not in a genuine relationship.
The first respondent tendered a bundle of relevant documents identified as “Court Book” and marked Exhibit 1R.
The applicant referred to a letter in the Court Book dated 15 January 2013 from the Department of Immigration (“the Department”) to the applicant identifying unfavourable information received by the Department and the result of a site visit at the residence of the sponsor on 14 December 2012. The letter also informed the applicant that the sponsor was recognised by Centrelink as being single and not in a relationship, de facto or otherwise, and that the sponsor had told the Department officers during the home visit that he was separated from the applicant and living with his son. Having taken the Court to that letter this morning, the applicant made no further submission in relation to it. It would appear to be a document considered by the delegate of the first respondent its decision and one upon which it relied in refusing the applicant’s partner visa.
The medical certificate annexed to the applicant’s affidavit, filed on 18 February 2015 in support of this proceeding, states that the sponsor requires the care of his wife, the applicant. It post-dates the RRT decision and does not assist the applicant in identifying a jurisdictional error on the part of the MRT.
In written submissions which I accept as accurate, the first respondent summarised the background of the applicants’ claims and the MRT’s decision as follows:
“Background
3. The applicant is a female citizen of Hong Kong.[1] She arrived in Australia on 2 November 2007.[2]
[1] CB 75-84
[2] CB 3, 83
4. The applicant applied for a Partner visa on 3 March 2010 on the basis of her relationship with her sponsor, Humberto Orlando Pinto Herrera.[3] The applicant and the sponsor were married on 1 March 2010, and a copy of their marriage certificate was provided to the first respondent's Department (the Department) in support of the application.[4] The applicant's son, Po Him Lam, was included in her application,[5] however he is not a party to these judicial review proceedings.
[3] CB 11, 25-33
[4] CB 42
[5] CB 136-140
5. On 3 March 2011, the applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa.[6] The Department subsequently requested that the applicant provide further information in support of the grant of a Partner (Residence) (Class BS) visa.
[6] CB 46-51
6. On 10 August 2012, the Department received an allegation that the applicant and sponsor were in a contrived relationship.[7]
[7] CB 146
7. On 27 November 2012, officers of the Department organised a home visit at the address at which the sponsor was apparently living.[8] On the basis of this site visit, it was concluded that the relationship between the applicant and sponsor was non-genuine.
[8] CB 149-162
8. By letter dated 15 January 2013, the applicant was invited by the Department to respond to the information obtained at the site visit. The letter detailed information, being that the sponsor was unable to demonstrate any reasonable knowledge of various aspects pertaining to his relationship with the applicant, during the home visit.
9. In a response dated 8 March 2013, the applicant stated that she could not explain why the sponsor provided incorrect answers to questions at the home visit, and that she had concerns about his 'noticeably deteriorating mental state'.[9]
[9] CB 172
10. The application for a Partner (Residence) (Class BS) visa was refused by a delegate of the first respondent on 4 April 2013.[10] The delegate was not satisfied that the applicant and sponsor were in a genuine and continuing relationship, and found that the applicant was not the spouse of the sponsoring partner as defined in section 5F of the Act.[11] As such, the delegate found that the applicant did not meet the criteria in clause 801.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
[10] CB 178-188
[11] CB 182
11. The applicant applied to the MRT for review of the delegate's decision on 24 April 2013.[12] The applicant attached a copy of the delegate's decision to her application for review.[13]
[12] CB 189-199
[13] CB 204-214
12. The applicant was originally invited to a hearing before the MRT scheduled for 1 October 2014.[14] At the applicant's request, the hearing was rescheduled for 18 November 2014, and the applicant attended with her representative.[15]
13. Prior to the hearing, on 17 November 2014, the applicant's representative provided further documentary evidence in support of her application.[16]
14. The applicant gave oral evidence before the MRT on 18 November 2014. Oral evidence was also received from the applicant's sponsor at hearing.[17]
15. At hearing, the MRT explained to the applicant that it would be putting information to the applicant which would be the reason, or part of the reason, for affirming the decision under review pursuant to section 359AA of the Act (see [17], [35], [55]). The MRT put to the applicant particulars of:
15.1 The home visit conducted by officers of the Department on 27 November 2012 with the sponsor (see [35]);
15.2 The incoming passenger card of the sponsor dated 14 May 2012 which stated that the sponsor's intended address in Australia was Copeland Road, Liverpool (which was not where the applicant resided), and the emergency contact was his son rather than the applicant (see [36]). The MRT similarly referred to another incoming passenger card of the sponsor dated 16 February 2012 (see [40]);
15.3 The incoming passenger card of the applicant dated also 14 May 2012 which stated the applicant's intended address was Sussex Street, Sydney, and she did not nominate any emergency contact person (see [39]);
15.4 The anonymous contact with the Department which claimed that the applicant was paying the sponsor to live in a contrived relationship for immigration purposes (see [41]); and
15.5 The inconsistent information provided by the sponsor as to when the applicant was working the previous week (see [55]).
[14] CB 225-227
[15] CB 299-302
[16] CB 257-298
[17] CB 299
16. The MRT made its decision on 20 November 2014, affirming the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
The decision of the Tribunal
17. The MRT found that, on the evidence before it, the applicant and sponsor were married to each other under a marriage that was valid for the purposes of the Act, and as required by section 5F(2)(a) (see [64]).
18. In assessing whether the applicant and sponsor were in a genuine and continuing relationship, the MRT had regard to the factors set out in Regulation 1.15A as follows:
18.1. The MRT found that there was very little information which would support a finding that the financial aspects of the relationship indicated a genuine relationship (see [65]-[72]). The MRT was of the view that the documents provided had been created solely for the purposes of supporting the applicant's immigration claims and they did not reflect the true circumstances of the relationship between the applicant and the sponsor (see [72]).
18.2. The MRT also found that there was little information which would indicate that the parties had established a household together (see [73]-[78]). In doing so, the MRT placed significant weight on the home visit which indicated that the sponsor was not sharing a household with the applicant (see [76]), the inconsistencies given by the applicant and sponsor as to the applicant's work hours in the week prior to the hearing, and the statements made by the sponsor to various authorities that his residential address was in Liverpool (see [78]).
18.3. With respect to the social aspects of the relationship, the MRT found that the parties did not represent themselves as being married to their families and friends (see [79]-[86]). The MRT further found that this was done deliberately, as far as the sponsor's family was concerned, to hide any claimed relationship with each other (see [86]).
18.4. The MRT also found that the parties did not provide the degree of commitment or emotional support to each other which was to be expected of a genuine and continuing relationship (see [87]-[91]).
18.5. Overall, the MRT found that there were some claims as to the relationship which would indicate that it was genuine (see [92]). However, the MRT concluded that the weight of the evidence indicated that the parties were not in a genuine and continuing relationship; the most significant evidence being that the applicant and the sponsor kept their relationship a secret from the sponsor's family (see [94]).
19. The MRT concluded that the applicant and sponsor were not in a spousal relationship as defined in section 5F of the Act and, as such, the applicant did not meet clause 801.221(2)(c) of Schedule 2 of the Regulations. ”
The documents within Exhibit 1R make clear that the applicant was invited to attend a hearing before the MRT in accordance with s.360 of the Act, did so and gave evidence, as did the sponsor. Information was given to the applicant for comment during the hearing by the MRT. There is nothing to suggest that that information was not given other than in accordance with s.359AA of the Act. The information included various concerns that the MRT had about the applicant’s evidence as reflected in the information contained in the report of the home visit conducted by the Department; inconsistent information in incoming passenger cards in the name of both the applicant and the sponsor; and, information contained in an anonymous letter to the Department, claiming that the applicant was paying the sponsor to live in a contrived relationship for immigration purposes.
The MRT’s decision record makes clear that it explored the applicant’s evidence with her at the hearing and heard evidence from the sponsor. The MRT put to the applicant various concerns it had about her evidence and noted her responses.
Ultimately, the MRT found that the applicant and sponsor had been willing to create documents to indicate that they were in a relationship with each other which were not a true reflection of their actual relationship.
The MRT’s decision record also makes clear that it considered the various matters that it is obliged to consider in relation to the visa sought by the applicant, those being:
a)The financial aspects of the relationship;
b)The nature of the household;
c)The social aspects of the relationship; and
d)The nature of the commitment of the sponsor and the applicant to each other.
The MRT found it of particular significance that the sponsor had been keeping the relationship between himself and the applicant a secret from his family, despite the fact that he had a close relationship with his son.
The MRT found documents provided by the applicant in relation to the financial aspects of the relationship to have been created solely for the purpose of supporting the immigration claims of the applicant and did not reflect the true circumstances of the relationship between the applicant and the sponsor.
A fair reading of the MRT’s decision record does not suggest that the MRT’s findings were anything other than open to it on the evidence and material before it and for the reasons it gave, including its adverse findings and conclusions. The MRT’s credibility findings are a matter par excellence for the MRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the MRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
It is well established that the MRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the MRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Otherwise, the applicant’s complaints are no more than a disagreement with the findings and conclusion of the MRT that she was not in a genuine relationship with the sponsor. Such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 17 December 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 4 March 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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