DAI v Minister for Immigration

[2017] FCCA 1991

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1991

Catchwords:
MIGRATION – Application for Constitutional relief – partner visa – criteria not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.375A, 476.

Migration Regulations 1994, Sch 2, cl 820.211(2)(d)(ii)

Applicant: JIANMIN DAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 33 of 2017

Judgment of: Judge Street

Hearing date: 21 August 2017

Date of Last Submission: 21 August 2017

Delivered at: Sydney

Delivered on: 21 August 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Hu
WB Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 33 of 2017

JIANMIN DAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth), (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2016, affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of China who arrived in Australia on 10 July 1998 on a Subclass TR-676 Visitor visa which ceased on 23 October 1998. The applicant was granted a further visa which ceased on 13 April 1999 and then a further visa which ceased on 3 August 1999. The applicant applied on 2 August 1999 for a Business (Subclass UC-457) visa, which was refused on 26 May 2000. On 7 August 2000, the applicant applied for protection which was refused on 22 August 2000.

3. On 16 April 2013, the applicant applied for the current partner visa. A differently constituted Tribunal affirmed the decision under review on 12 November 2015, and that decision was set aside by a Judge of this Court on the grounds of a jurisdictional error on 3 May 2016.

Tribunal Review

1. The applicant was then invited to attend a hearing before the current Tribunal. The current Tribunal identified the background in relation to the visa application. The Tribunal identified the applicant’s background. The Tribunal identified the applicant remained unlawfully in Australia for 13 years as well as the history in relation to the application in the present case.

2. The Tribunal identified the criteria that the applicant had to meet under cl 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). The Tribunal made reference to the decision of the delegate. In summarising the background, the Tribunal referred to the material provided to the Tribunal at the previous hearing as well as to the evidence given by the applicant in the current hearing at which the applicant was represented by his migration agent.

3. The Tribunal also referred to the evidence of two other witnesses, one of whom was the sponsor. The Tribunal made reference to the sponsor’s evidence that they had been together for more than 10 years and she would find it difficult to be separated from the applicant. The Tribunal made reference to the sponsor initially telling the Tribunal she had made one overseas trip to Cambodia without the applicant since the parties’ marriage and that that trip was in 2015.

4. The Tribunal made reference to the fact that when asked whether that was the only trip, the sponsor consulted her passport and advised that she went to Cambodia in December 2013 and again in October 2014 and again for about five weeks in July 2015. The Tribunal made reference to the applicant telling the Tribunal the sponsor also travelled to China with her father after the parties were married.

5. The Tribunal identified the issue as to whether the applicant held a substantive visa at the time of the application or had applied within 28 days of his last substantive visa ceasing and if not, whether there were compelling reasons not to apply the Schedule 3 criteria.

6. The Tribunal found it was not in dispute in the present case that the applicant did not have a substantive visa at the time of application and accordingly, the issue in the present case was whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying the criteria. The Tribunal made reference to the requirements of criterion 3001 that the application of a visa must be lodged within 28 days of the relevant day. The Tribunal found the applicant did not make the application within 28 days of the relevant day and found that the applicant’s last substantive visa ceased on 3 August 1999.

7. The Tribunal identified the issue as to whether there were compelling reasons not to apply the criteria. The Tribunal correctly identified the law relating to the breadth of meaning of compelling reasons. The Tribunal did not accept the applicant had any genuine fear of returning to China or that that provides a compelling reason for not applying the Schedule 3 criteria.

8. The Tribunal noted that the applicant approached the Chinese authorities in Sydney on two occasions to obtain new or extensions on his Chinese passport. The Tribunal found the applicant is not of any interest for any political or other reason to the Chinese authorities or that he would face any persecution or harm if he were required to return to China. The Tribunal did not accept the claim as made by the applicant with respect to protection that he made in 2000 as providing compelling reasons for not applying the Schedule 3 criteria. The Tribunal made reference to the relationship of the applicant and the sponsor. The Tribunal found the duration of the relationship does not, even of itself, provide a compelling reason not to apply the Schedule 3 criteria.

9. The Tribunal made reference to the sponsor’s need for care and support. The Tribunal found that the sponsor suffered from eye problems, hyperlipidaemia and a thyroid condition. The Tribunal made reference to the evidence that on occasions, the sponsor requires a few days off work when her eye condition is exacerbated. The Tribunal was not satisfied that taking a few days off work here and there due to illness is an unusual or out of the ordinary situation for adult employees. The Tribunal noted there was not medical evidence before the Tribunal establishing the sponsor faced a significant vocational difficulty as a result of her medical condition. The Tribunal was not satisfied that the evidence established the sponsor’s care and support needs are particularly extensive or beyond her capacity to self- manage.

10. The Tribunal took into account the medical records provided to the Tribunal regarding the sponsor. The Tribunal found there is no information in those reports which indicates the sponsor was dependent upon the applicant for any reason to address those conditions or that the presence of the applicant was required to manage those conditions. The Tribunal was not satisfied any such assistance by the applicant to the sponsor is vital or that she could not self-administer eye drops if and when they are required.

11. The Tribunal considered the sponsor’s health conditions and her claimed reliance from the support and care of the applicant and was not satisfied those provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal made reference to the sponsor’s care provider to her mother as well as the children that she had residing in Australia. The Tribunal was not satisfied that the circumstances of the sponsor’s mother and any support the applicant may give her provide a compelling reason for not applying the Schedule 3 criteria.

12. The Tribunal turned to the impact of separation. The Tribunal observed that couples often keep in contact by holiday visits, frequent telephone, electronic or other means of contact. The Tribunal did not accept that temporary separation whilst awaiting the outcome of the visa is a compelling reason for not applying the Schedule 3 criteria. The Tribunal was not satisfied the sponsor would suffer a severe level of financial hardship if the applicant were to depart Australia for a period of time such as would provide a compelling reason not to apply the Schedule 3 criteria.

13. The Tribunal did not find the applicant’s current role in relation to the sponsor’s dog provides a compelling reason to not apply the Schedule 3 criteria. The Tribunal was not satisfied the applicant has established there are any current risks to his safety in China and found that any such concern on his part did not provide compelling reason not to apply the Schedule 3 criteria. The Tribunal did not find that the applicant’s reticence of returning to China or desire to avoid difficult conversations with his family about his marriage provides a compelling reason not to apply the Schedule 3 criteria.

14. Having considered all of the evidence before the Tribunal, the Tribunal was not satisfied there are compelling reasons not applying the Schedule 3 criteria.

15. The Tribunal found the applicant did not meet the criteria under cl 820.211(2)(c)(ii) of Schedule 2 to the Regulations and affirmed the decision under review.

Hearing before this Court

1. The grounds in the amended application are as follows:

   1. The Respondent identified incorrect issues, asked incorrect questions resulting in unreasonable inferences when considering the care and need of Sponsor, with respect to functional impairment when performing vocational and day-to-day function.

   Particulars

   a. The Respondent identified the wrong issue when he postulated that he “is not satisfied that taking few days off from work here or there due to illness is an unusual or out of the ordinary situation for adult employees” (para [48]).

   b. The Respondent failed to properly assess the visual impairment of the Sponsor by asking if there are any information which would indicate the sponsor's health which would make her unable to work full time.

   c. The Respondent failed to ask the correct question as to whether there are any impact on Sponsor's day-to-day activities due to the visual impairment of the Sponsor.

   d. The Respondent failed to draw distinction between ability to continue working full time, and ability to continue working full time with assistance from external devices and technology to be provided in additional to a normal work setting.

   e. The Respondent's findings that the sponsor does not appear to have any significant physical infirmity are irrational and unreasonable based on the line of questioning used by the Respondent (para [54]).

   2. The finding by the Respondent that the Sponsor was not dependent upon the Applicant for any physical or other support and that she was able to manage her own affairs including travelling overseas (para [50]), was made without probative evidence and/or is otherwise ill and/or unreasonable.

   Particulars

   a. There was no probative evidence which suggest the Sponsor was able to manage her own affairs whilst travelling overseas.

   b. Evidence was given by the Sponsor and noted by the Respondent that the Sponsor made multiple overseas trips without the Applicant, among others, for purpose of attending her son's engagement ceremony and marriage (para [25]).

   c. The Respondent failed to consider the possibility the Sponsor could receive assistance from another person whilst traveling overseas.

   d. The evidence of ability to travel oversea does not by itself, logically sufficient to a conclusion that the Sponsor does not need another person to assist in managing her affairs and provide necessary care and support.

   e. The availability of care and support from another family member in another country does not dispute the fact that the Sponsor was dependent upon the Applicant when the Sponsor remains in Australia.

   f. The Respondent failed to give ample considerations as to two statutory declaration by way of form 888, provided by David Lim, the son of the Sponsor, and Thi Pich Kim, a friend of the Sponsor respectively, nor did he request further questions to be answers or mentioned in his questioning.

   3. The Respondent's finding, when considering impact of separation with regard to general emotional distress and financial hardship should the Applicant and the Sponsor be separated, are illogical, irrational and/or otherwise unreasonable (para [57 and 58]).

   Particulars

   a. The Respondent gave considerations to irrelevant factors that couples often keep in contact by holiday visits, frequent telephone, electronic or other means of contact. The question the Respondent should ask is whether the Sponsor and the Applicant could keep in contact by holiday visits, frequent telephone, electronic or other means of contact.

   b. The Respondent failed give considerations to fact the Applicant will not received financial support from his family in China unless he concedes to his family's request to divorce the Sponsor, despite noted the Applicant's evidence he would have difficulty finding employment, or otherwise financially supporting himself in China.

   c. The Respondent failed to properly assess the Sponsor's financial status in the likely scenario where the Applicant were forced to depart from Australia for a period of time.

   d. The Respondent erred in assessing the financial situation of the Sponsor and Applicant, and that he failed to take into account their current financial situation is a result of the Applicant being available to work and support more than 60% of the household income.

Grounds 1 and 2

1. Mr Hu, solicitor for the applicant, addressed Grounds 1 and 2 together. Mr Hu sought to take issue with the Tribunal’s observation in relation to the taking of a few days off here and there being an irrelevant consideration. The Court is not satisfied that the same is not a relevant consideration nor was the reasoning of the Tribunal in relation to the applicant’s claims and evidence illogical, irrational or unreasonable.

2. Mr Hu, solicitor, also invited the Court to take into account the applicant’s and sponsor’s evidence in relation to the sponsor’s need for support. It is apparent from the Tribunal’s reasons that this evidence was taken into account. It is also apparent that there was no medical evidence in the reports indicating that the sponsor was dependent on the applicant for any reason to address those medical conditions or that the applicant’s presence was required to manage any of those conditions.

3. The finding by the Tribunal that the sponsor did not have any physical infirmity and continued to work full-time was a finding open to the Tribunal, having taken into account the conditions identified by the Tribunal. There was no unreasonableness or irrationality in relation to the Tribunal’s reasoning.

4. The ability of the sponsor to travel overseas on her own was a relevant consideration for the Tribunal and was logical and rational evidence upon which to base the adverse findings by the Tribunal. Mr Hu submitted that the two statutory declarations provided by the son of the sponsor and a friend of the sponsor to the delegate were material that should have been referred to expressly in the Tribunal’s reasons. There is nothing in the two statutory declarations that rises any higher than the evidence of the applicant and the sponsor that was identified by the Tribunal in relation to the assertion of the relationship and needs of the sponsor.

5. Further, the Tribunal made reference to the delegate’s decision in its reasons. I am satisfied that the Tribunal took into account in that regard the material that was before the delegate, including the two statutory declarations. There was no need by the Tribunal to refer to every piece of evidence before the Tribunal. There was nothing material in the statutory declarations that required the Tribunal to make express findings in relation to the same. Grounds 1 and 2 are, in substance, an invitation to this Court to engage in impermissible merits review. No jurisdictional errors made out by Grounds 1 and 2.

Ground 3

1. In relation to Ground 3, Mr Hu took the Court to the Tribunal’s reasons in relation to the impact of separation on the applicant and sought to address the impact emotionally and financially. The substance of the submissions was to invite the Court to engage in impermissible merits review. There was no irrational, illogical or unreasonable finding by the Tribunal in holding that there were not compelling reasons due to the impact of separation or the financial impact in relation to the sponsor. Further, the Tribunal correctly identified the relevant law in relation to compelling reasons. No jurisdictional error is made out by Ground 3.

Irrelevant Certificate

1. The Court notes that the first respondent properly drew the Court’s attention to the existence of a certificate under s 375A of the Act and tendered before the Court the material the subject of the certificate. The material was clearly irrelevant to the decision. No alleged error was advanced on behalf of the applicant in relation to the certificate. That was a correct position for Mr Hu, solicitor for the applicant, to take as the material was plainly irrelevant, and the existence of a certificate, and the material the subject of the certificate, could not possibly have given rise to any jurisdictional error.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 October 2017