CQQ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 677
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CQQ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 677
File number: MLG 1752 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 22 August 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision affirming refusal to grant Partner (Temporary) (Class UK) visa – Tribunal found Schedule 3 criteria not met and no compelling reasons to waive Schedule 3 criteria - whether Tribunal failed to consider evidence that was relevant to its decision – whether Tribunal erred by placing too much weight on applicant’s migration history – no jurisdictional error – application dismissed Legislation: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Evidence Act 1995 (Cth) s 130
Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) cl 820.211
Cases cited: BRU20 v Minister for Immigration [2020] FCCA 930
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 28 July 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms K Hooper Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1752 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CQQ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 23 November 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
BACKGROUND
The applicant is a non-citizen who arrived in Australia in 1999. She applied for a partner visa on 14 October 2014 on the basis of her relationship with the sponsor, to whom she was married in August 2014. The applicant has a step-son from her marriage to the sponsor.
On 18 November 2015 a delegate of the Minister made a decision not to grant the applicant a partner visa. The delegate found that the applicant did not meet cl 820.211(2)(d)(ii) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because she did not meet the Schedule 3 criteria and there were no compelling reasons for not applying those criteria.
On 22 November 2015 the applicant lodged an application to the Tribunal for review of the delegate’s decision. The Tribunal convened a hearing on 7 August 2017, at which the applicant and the sponsor gave evidence.
On 23 November 2017 the Tribunal affirmed the decision under review.
TRIBUNAL DECISION
The Tribunal recognised that, as the applicant was not the holder of a substantive visa at the time of her application, she must meet certain criteria in Schedule 3 to the Regulations unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The Tribunal found that the applicant did not satisfy criterion 3001(2) as her application for the partner visa was not lodged within 28 days of the day her last substantive visa ceased. It followed that the applicant did not satisfy the Schedule 3 criteria.
The Tribunal then considered whether there were compelling reasons for not applying the Schedule 3 criteria.
The Tribunal took into account the applicant’s migration history, recognising that the weight to be given to her migration history must be proportionate. The Tribunal noted that the applicant previously applied for a protection visa on two occasions, using a bogus passport and false identity on the second occasion, and remained in Australia unlawfully following the unsuccessful outcome. The Tribunal found that the applicant’s presence in Australia from October 2001 to December 2014 was orchestrated by her to attain a migration outcome that she was not entitled to, and therefore found it reasonable to view any matter that may go to compelling reasons for waiving the Schedule 3 criteria through this prism of multiple breaches of Australia’s laws.
The Tribunal found that the relationship of the applicant and the sponsor could be considered a longstanding relationship of more than two years and placed weight on this matter in favour of the applicant.
The applicant claimed that she could not return to her country of citizenship because of her step-son, who was 11 years old at the time of the Tribunal decision. The Tribunal found that the applicant provided vague and general responses in relation to the precise reasons why the child was reliant on her presence in Australia. The Tribunal also found that the applicant did not spend significant periods with the child as he attended school in the day, tutoring in the evening and lived with his biological mother for four days out of any week.
The Tribunal found that both the sponsor and the child’s biological mother were involved in the child’s developmental care. The Tribunal did not accept that the child’s biological mother presented any serious issues in raising the child or that her overseas travels were so frequent as to constitute an abandonment of the child.
The Tribunal found that the applicant’s claim regarding the child’s language improvement was exaggerated in circumstances where the applicant’s own English skills appear to be limited. The Tribunal also noted a lack of evidence provided to suggest that the applicant plays a critical therapeutic role in the child’s life or a role that could be considered compelling. The Tribunal was not satisfied that the applicant’s bond with the child surpassed that with his biological mother, or that the applicant participated in the child’s medical requirements as opposed to the child’s biological mother.
The applicant also claimed that the sponsor suffers when thinking about being separated from the applicant and would have difficulty having an independent life without the applicant. A psychologist report in relation to the sponsor was provided to the Tribunal to support this claim. The Tribunal found that the psychologist did not provide evidence of having independently tested the sponsor as to his psychological status, and it appeared that the psychologist was approached in direct response to the negative Departmental decision of the applicant’s partner visa application.
The Tribunal accepted that the sponsor’s outlook would markedly improve if the applicant were to remain in Australia, but considered that it would be unusual for any married couple to be other than upset or distressed at the prospect of having to spend time apart. The Tribunal was not satisfied that the applicant and the sponsor could not continue to maintain a long-distance relationship while the applicant is offshore.
The Tribunal found that the applicant’s familiarity with the lifestyle in Australia was as a result of her breach of Australia’s migration laws. The Tribunal considered that in weighing all of the circumstances, the applicant’s unlawful conduct far outweighed any concerns about her wish to continue her life uninterrupted in Australia.
The Tribunal noted that the applicant had a daughter in China who was a professional and was not satisfied that the applicant would be without support or assistance upon return to China. The Tribunal was satisfied that the applicant’s refugee claims had been explored and were found to be unfounded on two occasions.
The Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. It followed that the Tribunal found that the applicant did not meet cl 820.211(2)(d)(ii) of the Regulations.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 27 December 2017, which is within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant advances two grounds of application (reproduced without alteration):
1.The second respondent failed to comply with its obligation under s 348(1) of the Act to review the decision of the first respondent by failing to consider evidence that was relevant to its decision to affirm the refusal of a subclass 820 Partner visa to the applicant.
Particulars
(a)The Tribunal at [34] made a finding that there was little evidence to support the fact that the applicant plays a role in the child’s life that could be considered compelling.
(b)The Tribunal at [39] asserted that they were not satisfied that the applicant, as opposed to the child’s biological mother, is participating in the child’s medical requirements. The Tribunal further finds that they were not satisfied that the child’s bond with the applicant surpasses that with his biological mother.
(c)In arriving at the above findings, the Tribunal failed to consider, or to appreciate all the relevant evidence contained in sponsor’s psychologist report, namely:
(i)The fact that the child loved the applicant as though she was his own mother;
and
(ii)The fact that the applicant did attend medical appointments with the child.
2.The second respondent failed to comply with its obligation under s 348(1) of the Act to review the decision of the first respondent by identifying and thereafter giving weight to a wrong issue.
Particulars
(a)The Tribunal at [51] found that the applicant’s prior breach of the Australian migration law far outweighed any concern about her wish to continue her life uninterrupted in Australia.
(b)The Tribunal erred as they placed emphasis on the wrong issue. It is submitted that the Tribunal ought to have assessed the applicant’s prior breach of the Australian migration law against her present compelling circumstances, namely acting in the best interest of her step- child.
MINISTER’S PUBLIC INTEREST IMMUNITY CLAIM
The Tribunal had before it a Document Examination Case Report and an Identity Assessment Report in relation to the applicant. The Minister claims public interest immunity over some parts of these documents which contain confidential information about investigative methods used by the Department and, in the case of the Identity Assessment Report, information obtained in accordance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (confidential information). Ms Michelle Cozadinos, a senior officer of the Department of Home Affairs, deposed that the confidential information, if revealed, would potentially allow people to subvert the Department’s investigative methods to detect fraudulent documents and claims and might undermine the effectiveness of those methods.
I have had regard to the confidential information for the purposes of assessing whether the confidential information should be excluded from the evidence before the Court for the purposes of s 130(1) of the Evidence Act 1995 (Cth). Having regard to the content of the confidential information and the evidence of Ms Cozadinos, I accept the Minister’s claim of public interest immunity. I am satisfied that the public interest in maintaining confidentiality in the confidential information outweighs the public interest in admitting the confidential information into evidence. The Minister has disclosed large parts of the Document Examination Case Report and the Identity Assessment Report to the applicant and those parts are sufficient to enable the applicant to understand the conclusions expressed in the reports. The confidential information refers to investigative methods and there is no reason to infer that the Tribunal relied on any confidential information about investigative methods in reaching its decision. Rather, the Tribunal relied on the conclusions expressed in the reports, which were also referred to in the delegate’s reasons.
CONSIDERATION OF GROUNDS OF APPLICATION
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Matters raised at hearing
At the hearing, the applicant did not specifically address the grounds of application. The applicant submitted that the child should be placed at the centre, the child is important and if the child is not living a normal life, this could cause problems for the entire family. I infer that the child the applicant is referring to is her step-child.
I accept the Minister’s submission in response that the Tribunal clearly considered the evidence and claims in relation to the applicant’s step-child and her relationship with him, before concluding at [41] of its reasons that it was not satisfied that the relationship amounted to a compelling reason to waive the Schedule 3 criteria. The applicant at the hearing essentially expressed disagreement with the Tribunal’s decision, and invited the Court to reach a different decision on the merits. That is beyond the power of the Court.
Ground 1
The applicant asserts by ground 1 that the Tribunal failed to consider particular evidence in the report prepared by the sponsor’s psychologist, in particular:
(a)the fact that the child loved the applicant as though she was his own mother; and
(b)the fact that the applicant did attend medical appointments with the child.
In a report dated 19 May 2017, the sponsor’s psychologist reported on the areas of the sponsor’s life that were affected and relevantly said (emphasis added):
Independent living – without [the applicant] he sated he would go crazy. She came to Australia in 1999, and had spent 19 years here. She was the stepmother to his son, who loved her as though she was his own mother. [The sponsor] did not believe he could live life without her. He stated he would find it difficult to sustain independent living without his life partner. She runs their home, attends to errands, attends the weekly shopping and attends medical appointments with him…
The Tribunal clearly considered the report of the sponsor’s psychologist in reaching its decision, and discussed the report in detail at [42] to [46] of its reasons.
At [42] the Tribunal expressly noted that the ‘sponsor also told the psychologist that the applicant loved his child as though she was his own mother and that it would be difficult to have independent life without the applicant as she ran their home, attended errands, and attended weekly shopping and medical appointments with him’ (emphasis added).
Thus, it is clear that the Tribunal was cognisant of the particular evidence in the report prepared by the sponsor’s psychologist that the applicant claims the Tribunal did not consider.
The Tribunal considered that the probative value of the report was limited, in circumstances where the psychologist recorded what the sponsor told her about his symptoms and life situation, but did not provide any evidence that the psychologist had independently tested the sponsor and reached her own conclusions about his psychological status. The probative value of the report was also diminished in the Tribunal’s view because it appeared to have been prepared in direct response to the delegate’s decision.
Specifically in relation to the applicant’s relationship with the child, which is the focus of ground 1, the Tribunal noted at [45] that the psychologist had not observed the child with the applicant to provide a professional opinion about how important it is that the applicant not leave Australia for any period of time because it would be in the child’s best interest. The applicant in the particulars to ground 1 refers to [34] of the Tribunal reasons, where the Tribunal said that there is little evidence to show that the applicant plays a role in the child’s life that could be considered compelling. The Tribunal’s explanation at [45] provides a clear and cogent justification as to why it did not consider the information in the psychologist’s report to amount to compelling evidence of the role that the applicant plays in the child’s life.
The applicant has also referred in the particulars to this ground to [39] of the Tribunal’s reasons, where the Tribunal said:
On the evidence before it the Tribunal is not satisfied that the applicant as opposed to the child’s biological mother is participating in his medical requirements and that the bond he has with the applicant surpasses that with his biological mother. On the evidence before it, the child does have his parents’ active involvement in his development and care and it does not preclude his biological mother.
It is unclear to me the error that the applicant is asserting in relation to this paragraph. At its highest, the complaint of the applicant appears to be that the Tribunal should not have reached this finding without considering the evidence in the sponsor’s psychologist’s report that the applicant attends medical appointments with the child. This complaint does not establish jurisdictional error for two reasons. First, it is not clear that the psychologist’s report refers to the applicant attending medical appointments with the child, as opposed to attending medical appointments with the sponsor. Second, as explained above, the Tribunal clearly had regard to the information in the medical report.
It was open to the Tribunal to give little weight to the sponsor’s psychologist’s report for the reasons it gave. It was clearly aware of, and took into account, those parts of the report that are the subject of ground 1.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal erred by placing too much weight on her migration history, and should have assessed her prior breach of migration law against her present compelling circumstances, namely the best interests of her step-child. The ground refers specifically to [51] of the Tribunal’s reasons, where the Tribunal said:
The Tribunal notes that the migration agent also states that the applicant has already become familiar with the lifestyle in Australia and that she admires Australian values and the respect for freedom and dignity of the individual. What the migration agent fails to acknowledge, however, is that the applicant has gained familiarity with the lifestyle in Australia because she has flouted Australia’s laws by travelling on a false identity. In weighing all the circumstances, the Tribunal considers that the applicant’s conduct in this regard, far outweighs any concerns about her wish to continue her life uninterrupted in Australia.
Viewed in context, this paragraph is simply a reflection of the Tribunal’s view that the applicant’s desire to maintain an Australian lifestyle and that she holds Australian values is outweighed by her migration history. The Tribunal did not overlook the interests of the applicant’s step-child, and addressed the step-child’s interests elsewhere in its reasons, in particular, from [21]-[41] and [45].
The Tribunal’s comments at [51] should also be viewed together with other paragraphs in which the Tribunal has addressed the weight to be given to the applicant’s migration history, in particular at [15] and [16], where the Tribunal said:
15.In making a decision in this case the Tribunal cannot allow its decision making to be overborne by the applicant’s history and clear determination to maintain a continuing presence in Australia, even when there appeared to be no legitimate means for her to do so. The focus of the Tribunal’s inquiry is to determine whether there are compelling reasons for waiving the Schedule 3 criteria. However, Departmental policy indicates that matters involving past breach of visa conditions are matters that can be taken into account in weighing whether there are compelling reasons. Nonetheless, weighting of an applicant’s history has to be proportionate and cannot automatically outweigh genuine compelling reasons for waiving the Schedule 3 criteria.
16.In the applicant’s case, however, the Tribunal has serious concerns about her conduct in pursuing several unmeritorious protection visa applications. More relevant still is that her second protection visa application was facilitated by entry into Australia using a bogus passport and false identity. On any fair reading of the situation, the applicant’s presence in Australia after 9 October 2001 until 17 December 2014 was clearly orchestrated by her to attain a migration outcome that she was not entitled to. Therefore, it is reasonable to view any matter that may go to compelling reasons for waiving the Schedule 3 criteria through this prism of multiple breaches of Australia’s laws. This is particularly so as, but for the applicant’s transgressions, her relationship with the sponsor is likely not to have cemented
It was open to the Tribunal to take into account the applicant’s migration history in assessing whether there were compelling circumstances not to apply the Schedule 3 criteria: see, for example, BRU20 v Minister for Immigration [2020] FCCA 930 at [41]-[42]. The Tribunal has been cautious in its approach to the applicant’s migration history, and weighed other matters against a migration history which the Tribunal clearly saw as negative. Ultimately, weighing all the matters raised by the applicant, the Tribunal was not satisfied that there were compelling reasons to waive the Schedule 3 criteria, as seen by its conclusion at [54]:
The Tribunal has taken into careful consideration the matters raised by the applicant and sponsor and others, individually and cumulatively but the Tribunal is not satisfied that any of these individually or in combination, move the Tribunal to find that there are compelling reasons for waiving the Schedule 3 criteria. Accordingly, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
The Tribunal’s approach does not disclose jurisdictional error. Ground 2 is dismissed.
CONCLUSION
In circumstances where the applicant has not established jurisdictional error in the Tribunal decision, the application to this Court must be dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 August 2022
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