Dai v Minister for Immigration

[2020] FCCA 2848

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2848

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether the delegate of the Minister for Immigration and the Tribunal exercised discretion and took into consideration all the facts and medical conditions to make a fair decision – whether the delegate for the Minister for Immigration gave too much weight to the applicant’s migration history – whether the Tribunal considered all the relationship evidence provided – whether the Tribunal fairly assessed the application without bias – whether the Tribunal considered the possible damage that will occur if the applicant was to leave the sponsor – whether jurisdictional error is made out – legal unreasonableness – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.3, cl.820.221

Cases cited:

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: HONGBIAO DAI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3370 of 2018

Judgment of: Judge Humphreys

Hearing date: 7 October 2020

Date of Last Submission: 7 October 2020

Delivered at: Parramatta

Delivered on: 23 October 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Warner Knight, Australian Government Solicitor

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3370 of 2018

HONGBIAO DAI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a 51-year-old citizen of China. The applicant first arrived in Australia on 21 March 1998 using a passport in a different name, on a Visitor’s visa. This visa expired on 10 February 1999. The applicant has not held a substantive visa since that time. The applicant has held Bridging visas for some of the time he has been in Australia since then, but for substantial periods of time he has been an unlawful noncitizen.

2. The applicant then applied for a Protection visa. This was refused by the Department of Home Affairs (“the Department”). That refusal was affirmed by the then Refugee Review Tribunal. The applicant then applied for Ministerial intervention, which was again refused.

3. On 15 January 2015, the applicant applied for a Partner (Temporary) (Class UK) visa, based on a relationship with his sponsor. The applicant claimed that the parties met in 2011 and began a de facto relationship in 2014. That relationship was registered on 13 of February 2015.

4. On 5 February 2015, the Department sent the applicant an invitation to comment on whether he met the Schedule 3 waiver criteria of having compelling reasons to remain in Australia rather than returning to China and making an offshore Partner visa application.

5. On 4 March 2015, the applicant provided a number of supporting documents, including evidence of the sponsor’s medical condition, a relationship certificate and evidence of mail, addressed to the applicant at the same address as his sponsor.

6. On 9 June 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Partner visa on the basis that he did not satisfy cl 820.221 (2)(d) of the Migration Regulations 1994 (Cth) (“the Regulations”) and criterion 3001, in that his application was not made within 28 days of having a substantive visa, nor were there compelling reasons not to apply the Schedule 3 criteria.

7. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). On 7 November 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant his partner visa.

8. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal decision

1. The Tribunal decision set out the applicant’s migration history in some detail. The Tribunal decision noted that the sponsor applicant is currently 45 years of old. The sponsor applicant was granted a Subclass100 Partner (Residence) visa on 31 March 2009. The sponsor applicant claims to have separated from her husband who sponsored her for that visa the following year. The sponsor applicant became an Australian citizen in 2012.

2. Given that the applicant did not hold a substantive visa at the time of the application, the only relevant matter for the Tribunal to determine, was whether the Schedule 3 criteria should be waived, due to compelling reasons.

3. The Tribunal found that the applicant had shown complete disregard for Australia’s immigration laws. The statement provided by the applicant indicated that he came to Australia to find employment, indicating that he had no intention to remain temporarily in Australia when he applied for his initial Visitor’s visa. The Tribunal also found that the subsequent application for a Protection visa was not based on any valid claim that the applicant faced persecution or harm in China.

4. The Tribunal noted that the applicant’s parents, sisters and son from a previous relationship all reside in China and do not have any difficulties with Chinese authorities. The Tribunal concluded that there were no circumstances in China which would prevent the applicant from returning to China to file an offshore Partner visa application. Accordingly, the circumstances that the applicant faced in China did not provide compelling reasons not to apply the Schedule 3 criteria.

5. The Tribunal did not make any critical assessment of whether the parties’ were in and continue to be in, a genuine and continuing exclusive relationship and accepted this at face value.

6. The Tribunal however, expressed significant concerns as to whether the relationship was genuine and this was relevant to its consideration of whether the particular circumstances of the relationship itself, might be a compelling reason for waiver. The Tribunal noted at paragraph 46 of its decision that the applicant provided no evidence that he was currently living with the sponsor, was unaware of significant events in the sponsor’s life including overseas travel, and that the sponsor had not attended the Tribunal hearing.

7. The Tribunal did not accept that the applicant and sponsor started living together in a de facto relationship in September 2014. The Tribunal noted inconsistencies in the applicant’s claims in terms of his relationship with the sponsor as compared to her travel and his travel history. The Tribunal noted that no convincing evidence was provided, which indicated that the parties lived together.

8. The Tribunal considered information that the sponsor had suffered from a medical condition, however the evidence provided, indicated that the sponsor was successfully treated for the condition and that it did not adversely affect her in any way. There was no evidence before the Tribunal that the sponsor was dependent upon the applicant for any health reasons.

9. The Tribunal concluded, that the sponsor was not dependent on the applicant. This was evidenced by the applicant’s unawareness of what the sponsor did when she travelled for work, that the sponsor worked for a travel agency and was therefore not financially dependent on the applicant, and that it is not apparent that the sponsor relied on the applicant for emotional and other support.

10. The Tribunal was not satisfied that there were any circumstances of the claimed relationship that provided a compelling reason not to apply the Schedule 3 criteria. The Tribunal did not accept that the sponsor failed to attend the hearing because she was concerned that the applicant may not be granted the visa. The Tribunal concluded that there were no compelling reasons to not apply the Schedule 3 criteria, and accordingly, the applicant did not meet cl 820.211(2)(d)(ii) of the Regulations. There was also nothing before the Tribunal to indicate that the applicant would meet any of the alternative criteria in cl 820.211 of the Regulations. Accordingly, the Tribunal affirmed the delegate’s decision.

Grounds of Judicial Review

1. The grounds for judicial review are set out in the applicant’s Initiating Application filed on 4 December 2018 and have not been amended since then. The grounds for judicial review are as follows verbatim:

   Ground One:

   The first respondent and the second respondent both have not executed the discretion of schedule 3 assessment; they have not taken all the facts and medical conditions into consideration to make fair decision.

   Ground Two:

   The first respondent weighted too much of the applicant's migration history which has been declared in the application itself to the first respondent.

   Ground Three:

   The second respondent has not considered all the relationship evidence provided and the absence of hearing is not crucial to determine the genuine relationship.

   Ground Four:

   The applicant's migration history is main concern to the first and second respondents, therefore, the first and second respondents did not fairly assess the application, and the bias is very obvious in this application.

   Ground Five:

   The first and second respondents did not consider the possible damage will be occurred if the applicant leaves the sponsor.

The Applicant’s Submissions

1. Due to Covid19 health restrictions, the hearing was conducted by telephone. The applicant appeared before the Court unrepresented. The applicant was assisted by a Mandarin Interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s submissions had been interpreted to him.

2. Despite Court orders, no written submissions or evidence other than that contained in the applicant’s affidavit which accompanied the Originating Application were filed in Court. The Court carefully explained the procedure that was to be followed in relation to the hearing. This included the fact that the Court was conducting a judicial review, not a merits review. The difference between the two was explained

3. The applicant repeated his claim that the Tribunal had placed too much weight on his migration history. The applicant claimed that when he first came to Australia, he did not have a great deal of knowledge about Australian migration law, and this caused him to make errors. This included, applying for a Protection visa. The applicant stated that his partner’s illness was such that he could not return to China.

4. Following the first respondents oral submissions, the applicant was asked if he had anything further he wished to put to the Court. The applicant stated no.

The First Respondent’s Submissions

1. The legal representative for the first respondent, after setting out the history of the matter, noted that as the applicant did not have a valid visa at the time of the application for his Partner (Temporary) (Class UK) visa, the only matter that the Tribunal was required to consider was whether or not there were compelling reasons to waive the Schedule 3 criteria.

2. The legal representative for the first respondent noted that grounds one, two, four and five refer to alleged errors by the first respondent being the delegate. Pursuant to s 476 (2) of the Migration Act 1958 (“the Act”), the Court does not have jurisdiction to review errors of the delegate. It was accordingly assumed that these grounds are intended to be directed to the decision of the Tribunal.

3. Ground one contends that the Tribunal failed to take “all facts and medical conditions into consideration to make a fair decision”. The applicant has not identified any such evidence or claims that the Tribunal failed to take into account, and no such failure is apparent.

4. Ground two complains that the delegate placed too much weight on the applicant’s bad immigration history. On the basis of the applicant’s own evidence, as to his reasons for coming to Australia and wanting to remain, the Tribunal found that the applicant had no genuine basis for making his Protection visa application, and this was relevant to its consideration of “compelling reasons”, in particular, it’s finding that the applicant had no reason to fear return to China. The legal representative for the first respondent submitted that this finding was rationally open to the Tribunal on the evidence before it, and that the ground does not identify any jurisdictional error.

5. Ground three is unclear. To the extent that the complaint is that the Tribunal failed to take into account all the evidence of the relationship which demonstrated that it was genuine, the applicant has not identified any evidence to which the Tribunal failed to take into account. In terms of the Tribunal’s view as to the failure of the sponsor to attend the hearing, this was not the only or a determinative reason for the Tribunal’s doubts that the relationship is not genuine. Other matters were noted at paragraphs 50 to 53 of the Tribunal’s decision, to support the finding.

6. Ground four contends that the Tribunal’s decision was affected by bias, occasioned by the applicant’s bad immigration history. The gist of this complaint appears to be that it was unfair or not open to the Tribunal to have regard to the applicant’s previous immigration history. However, the applicant’s history was relevant both to the Tribunal’s assessment of his credit and to it’s consideration as to whether or not there were compelling reasons why the applicant might not be safe to return to China and make a Spouse visa application from there.

7. The Tribunal did not place undue weight on this issue. Rather, the Tribunal placed significant reliance on evidence that the sponsor was not dependent at all on the applicant, that they spent a great deal of time apart, and that the sponsor travelled overseas regularly and worked full-time. For these reasons it was open to the Tribunal not to accept the applicant’s claims as to the sponsors need and not to be satisfied that there were compelling reasons to waive the Schedule 3 criteria.

8. Ground five complains that the Tribunal failed to take into account the possible damage that will be occurred if the applicant leaves the sponsor. To the contrary, it was submitted by the legal representative for the first respondent, that the Tribunal made a finding that the sponsor and the applicant lived quite separate, independent lives. Nor was it ever advanced, in terms, by the applicant that he may “leave” the sponsor and that she would suffer.

9. In oral submissions, the legal representative for the first respondent noted that the applicant’s oral submissions merely repeated ground two of the application

10. Accordingly, the legal representative for the first respondent submitted that none of the grounds advanced by the applicant revealed jurisdictional error and that the application should be dismissed.

Consideration

1. The applicant is a citizen of China. The applicant came to Australia in 1998 on a Tourist visa using a passport in a different name. The applicant’s initial visa expired in February 1999. The applicant has not held a substantive visa since that time. A previous application for a Protection visa was refused. The applicant has been granted Bridging visas on the grounds that he was making arrangements to depart Australia, but has failed to comply with those visas. For extended periods of time, the applicant has remained in Australia as an unlawful noncitizen.

2. In terms of the application before the Court, the applicant applied for a Partner (temporary) (Class UK) visa based on his de facto relationship to a former Chinese citizen who became an Australian citizen in 2012.

3. As the applicant did not hold a substantive visa at the time of his application for a Partner visa, the delegate was required to consider whether not the applicant satisfied Schedule 3 criteria, 3001, 3002 and 3004 and if he did not, whether there were compelling reasons not to apply those criteria. The delegate and the Tribunal found that the applicant did not have compelling reasons.

4. The Court is satisfied that the applicant did not satisfy criterion 3001 of Schedule 3, as his partner visa application was not made within 28 days of holding a substantive visa. The applicant’s last substantive visa expired in February 1999. The Court is satisfied that the Tribunal firstly, correctly instructed itself as to the meaning of “compelling reasons”. The Tribunal was entitled to rely upon the applicant’s previous migration history in determining whether or not there were compelling reasons. The Tribunal was entitled at paragraph 42 of its decision, to find that the applicant has manipulated his circumstances such as to remain in Australia with no valid reason and has made false claims when he applied for both his Tourist visa and later when applying for his Protection visa. These were matters that the Tribunal was entitled to take into account when considering whether or not there were “compelling reasons” for the applicant to remain in Australia.

5. The Court notes that the Tribunal did not make any findings as to whether or not the applicant and his sponsor are in a genuine relationship together, although it had significant concerns as to whether or not they were in a genuine relationship. None of the information put forward by the applicant was sufficient, in the Tribunal’s view, to find that there were compelling reasons for the applicant to stay in Australia. This included the sponsor’s health and her need for support, noting that she regularly travels away from him and he is not aware of what she does when she is away. The Tribunal did not accept that there were any reasons why the applicant could not return to China.

6. In terms of the grounds for judicial review, in so far as they relate to the first respondent, the Court notes that it has no jurisdiction to review the delegate’s decision. The Court’s jurisdiction relates to judicial review of the Tribunal’s decision.

7. In so far as the grounds of appeal relate to the Tribunal’s decision, the Court finds as follows:

   Ground one:

   No particulars are provided as to what facts or medical conditions were not taken into consideration. For this reason alone, this ground can be rejected: (see WZAVW v Minister for Immigration [2016] FCA 760) at [35]. Notwithstanding this, a perusal of the Court Book and other material, indicates that the Tribunal considered all relevant material.

   Ground two:

   The Court considers that the Tribunal was entitled to take into account the applicant’s migration history when considering his claims as to whether not there were compelling circumstances. This was a relevant matter as to the applicant’s credit and in judging the veracity of the claims made by him as to compelling circumstances. No jurisdictional error arises.

   Ground three:

   This is unclear, in that it appears to make reference to the fact that there was a contention that the Tribunal took an adverse inference based on the sponsor’s failure to attend the hearing or give evidence. The Court agrees with the legal representative for the first respondent that this was not a determinative factor, given that the Tribunal made no substantive finding as to the genuineness of the relationship. The Tribunal however, considered matters in the light of whether or not there were compelling circumstances as it was entitled to. No jurisdictional error is established.

   Ground four:

   This alleges bias occasioned by the applicant’s is bad immigration history. The claim of bias is serious and requires evidence. The mere fact that the Tribunal made adverse findings in respect of the applicant, does not give rise to an inference of bias by itself, there is nothing to suggest that the Tribunal approached the task with other than a mind open to persuasion: (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668) at [38] per von Doussa J. A fair reading of the decision of the Tribunal, does not indicate any pre-judgement in that the Tribunal was committed to finding against the applicant regardless of the evidence. Rather, it evidences a discussion of the various criteria and the arriving at of a decision that there were no compelling reasons. This conclusion was fair, in that it was open to the Tribunal, on the evidence before it. Ground four reveals no jurisdictional error.

   Ground five:

   Ground five is a claim that the Tribunal failed to take into account the “possible damage that will be occurred if the applicant leaves the sponsor”. No evidence was supplied in support of that claim. The Tribunal in fact found that the applicant and sponsor lead quite separate lives. There was little in the way of evidence that would indicate that if the applicant and the sponsor were required to separate, in order for him to go back to China and make an offshore Partner visa application, that their relationship would be imperilled or that the sponsor would suffer undue hardship. Ground five reveals no jurisdictional error.

1. As the applicant is unrepresented, the Court has carefully perused the decision of the Tribunal and is of the view that there is no jurisdictional error apparent on the face of the record which has not been articulated by the applicant.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 23 October 2020