DOU v Minister for Immigration

[2016] FCCA 682

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 682

Catchwords:
MIGRATION – Partner visa – secondary applicant – failure to report change in circumstances – cancellation – review of Migration Review Tribunal decision – whether the Tribunal misconstrued the criteria of the visa – criteria did not require that the secondary applicant be relevantly dependant of the primary applicant – mistake by Tribunal critical to the Tribunal’s decision – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.104, 107, 109

Migration Regulations 1994 (Cth), regs.1.12, 2.41
Relationships Register Act 2010 (NSW)

Berenguel v Minister for Immigration & Citizenship (2010) ALJR 251; [2010] HCA 8
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Shahi v Minister for Immigration & Citizenship (2011) 246 CLR 163; [2011] HCA 52

Applicant: JING DOU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 832 of 2015

Judgment of: Judge Smith

Hearing date: 22 March 2016

Date of Last Submission: 22 March 2016

Delivered at: Sydney

Delivered on: 22 March 2016

REPRESENTATION

Counsel for the Applicant: Mr R. Nair

Solicitors for the Applicant: GEA Lawyers

Counsel for the Respondents: Mr G. Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 24 February 2015.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 9 September 2014 according to law.

3. The name of the second respondent be amended to Administrative Appeals Tribunal.

4. The first respondent pay the applicant’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 832 of 2015

JING DOU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant in this matter is a citizen of the People’s Republic of China, who first arrived in Australia on 20 October 2008 on a student visa. On 14 December 2010 her mother lodged an application for a temporary partner subclass 309 visa, which was also taken to be an application for a permanent visa, namely, a subclass 100 visa. The applicant, who was a minor at the time, was included in that application as a member of her mother’s family unit being a dependent child.

2. It was a criterion for the grant of the temporary subclass 309 visa that, at the time of the decision, the applicant continued to be a member of the family unit of the primary applicant, namely, the mother. However, it was not a criterion for the grant of the subclass 100 visa that at the time of the decision the applicant continued to be a member of her mother’s family unit or, in other words, that she be the dependent child of her mother.

3. On 14 March 2012 the applicant was granted the subclass 309 temporary visa and was outside Australia at the time of the grant.  She returned to Australia on 23 March 2012. On 15 January 2014 she was granted the permanent subclass 100 partner visa. In the intervening period, she had formed a relationship with, and ultimately married, a Mr Chen on 14 February 2014. Mr Chen, it appears, made a separate application for a visa based upon his relationship with the applicant.

4. On the basis of Mr Chen’s application, on 30 July 2014 a delegate of the Minister sent the applicant a notice of intention to consider cancellation under s.109 of the Migration Act 1958 (Cth). The basis of the notice was that in question 96 of her visa application the applicant had indicated that she was a dependent of her mother, whereas in his visa application, Mr Chen indicated that he had been in a relationship with the applicant since at least 23 August 2013.

5. The delegate indicated that this might mean that the applicant had not complied with s.104(1) of the Act because she had failed to notify the Department that she had begun a relationship with Mr Chen in May 2013 and registered her relationship with the New South Wales Registry of Births, Deaths and Marriages on 23 August 2013.

6. Section 104(1) of the Act provides:

   If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

7. After the applicant responded to that notice by her then lawyers, a delegate of the Minister decided to cancel the applicant’s visa on 9 September 2014. Amongst other things, the delegate took into account, pursuant to reg.2.41 of the Migration Regulations 1994 (Cth), the likely effect on the decision to grant the applicant a visa of the correct information and noted that, had the Department been aware of the correct information at the time of the visa grant, it would have affected the decision to grant her visa because the applicant would not have met sub-reg.1.12(1)(b), since she was not a dependent as defined in reg.1.03.

8. It is accepted that the delegate was not correct in assuming, as she appears to have done, that it was a criterion for the grant of the subclass 100 visa that the applicant be a dependent child of her mother at the time of the grant of that visa. That is the case, although the applicant’s advisors did not point that out to the delegate.

9. The applicant then applied to the Tribunal for a review of the decision and made various submissions to the Tribunal in writing as well as at a hearing conducted by it on 16 January 2015. The Tribunal handed down its decision on 24 February 2015, affirming the decision of the delegate.

The Tribunal’s decision

1. The Tribunal first considered that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 complied with the statutory requirements. It then turned to consider whether there was non-compliance as described in the s.107 notice. It concluded that based upon the applicant’s clear evidence at the hearing, it was satisfied that she had commenced a de facto relationship with Mr Chen not later than 26 July 2013 and that she did not notify the Department of those changes in her circumstances prior to the grant of her subclass 100 partner visa. For that reason, it found that there was non-compliance with s.104(1) by the applicant in the way described in the s.107 notice. It then turned to consider the exercise of the discretion that arose under s.109 of the Act which states:

   (1)     The Minister, after:

   (a)deciding under section 108 that there was non-compliance by the holder of a visa; and

   (b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

   (c)having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

2. In particular, the Tribunal had regard to the prescribed circumstances in accordance with sub-s.109(1)(c), which were set out in reg.2.41 of the Regulations. Importantly, one of those considerations was the likely effect on a decision to grant a visa with the correct information.

3. In this respect, the Tribunal, like the delegate, proceeded on the basis that it would have been fatal to the applicant’s application or eligibility for a subclass 100 visa that at the time of the grant she was in a de facto relationship rather than being a dependent child of the mother. That, as I have already said, is accepted to be incorrect.

4. Critically, the Tribunal said the following:

   [57]If the information that the applicant was in a de facto relationship, at least six months prior to the grant of the subclass 100 Partner visa as a dependent child of the primary applicant, her mother, it is likely the applicant would have been refused her subclass 100 Partner visa. As is referred to above, the definition of a dependent child excludes a child who is engaged to be married or has a spouse or de facto partner.

   …

   [75]The tribunal has considered all the circumstances of the applicant, including how the cancellation of her visa would affect her husband. The tribunal is not satisfied there are any circumstances of the applicant, or her husband, which would lead the tribunal to exercise its discretion not to cancel the visa. The tribunal has found that the applicant had obtained advice from a migration agent at the time she commenced a de facto relationship with Mr Chen and that she would have been aware of her obligation to advise the department of any change of circumstances. That she had commenced a de facto relationship with Mr Chen would have had a direct and fatal impact upon whether she would be entitled to the grant of the subclass 100 Partner visa.

5. Having considered all of the matters in reg.2.41, the Tribunal concluded there was nothing in the circumstances of the applicant or the issues arising from the non-compliance which led the Tribunal to conclude the visa should not be cancelled and so affirmed the decision under review.

Consideration

1. The applicant was granted leave at the hearing to rely on an amended application. There are four grounds in that application.

Ground 1

1. The first ground is that the Tribunal misconstrued the criteria for the grant of the subclass 100 visa and s.104 of the Act, and so misapplied the law. In summary, this ground within s.104 should be read so that it only relates to material changes in circumstances, and, in particular, changes which might be material to the eligibility of the relevant person for the grant of the visa of which he or she is a holder.

2. In my view, that reading is not open on the plain words of the section. Counsel for the applicant argued that if the ordinary words were given full effect, there would be harsh consequences such as those that were referred to by the High Court in Shahi v Minister for Immigration & Citizenship (2011) 246 CLR 163; [2011] HCA 52 as well as in Berenguel v Minister for Immigration & Citizenship (2010) ALJR 251; [2010] HCA 8. In my view, that is not correct in this case.

3. Pertinently, the object of s.104 is to maintain the integrity of the visa scheme, and it is not simply focused upon the criteria for the grant of a particular visa. There are many such circumstances which may be envisaged as being relevant to the broader scheme and not simply to the criteria, such as the change in name or the change in family status, which might have impacts upon the way in which the visa scheme is administered by the department or by the Minister him or herself. Such is the breadth of those circumstances that it is, in my view, wrong to confine s.104 in the manner suggested by the applicant. For those reasons, I would reject the first ground.

Ground 2

1. The second ground is that the Tribunal constructively failed to exercise its jurisdiction by misconstruing the criteria for the grant of the subclass 100 visa. As I have noted, it is common ground that the Tribunal proceeded on a misunderstanding that the subclass 100 visa, for the purposes of a secondary applicant, required that that applicant be relevantly a dependent of the primary applicant.

2. Counsel for the Minister argued that this was an error within the jurisdiction. Once the Tribunal focused upon the relevant considerations, as it did under reg.2.41, pursuant to sub-s.109(1)(c), then any errors of fact such as this did not affect its jurisdiction, and so did not warrant the issue of the constitutional writs sought by the applicant.

3. He also argued that, absent the impugned finding, it could not be assumed that the outcome would have been any different. In this respect, he argued that it may have been that if the applicant had raised the correct information prior to the grant of the subclass 100 visa, then her earlier visa, the subclass 309, might have been cancelled.

4. The difficulty with that argument is that that is not the way in which the Tribunal reasoned. It is important to understand that the Tribunal’s reasons play a critical part is ascertaining whether or not it has properly fulfilled its duty to review the decision of a delegate. Those reasons reveal, amongst other things, the material findings of fact as well as its reasons for the decision.

5. For that reason it is not relevant, in my view, to consider what somebody else might have done or what the Department itself might have done had it discovered material in a way that the Tribunal simply did not put its mind to. 

6. With that in mind, it is important to see what the Tribunal did put its mind to. I have set out [57] and [75] of its reasons above. In my view, those paragraphs reveal that it was a critical part of the Tribunal’s decision, that is the consideration of the exercise of its discretion, that the applicant would not have been entitled to the grant of a subclass 100 visa had she notified the Department of the change in circumstances, being her entry into a de facto relationship with Mr Chen. That was wrong.

7. In my view, it does not matter whether that error can be classified as one of fact or one of law. As was discussed by Gummow and McHugh JJ in Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30, the distinction between fact and law has different purposes in different areas of the law, but close attention must be paid when using such classifications when determining the grant of constitutional writs.

8. A further issue of classification is exemplified by Robertson J’s decision in the Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. His Honour there explained that the search for jurisdictional error is really to ascertain whether there was an error and how serious it is, having regard to the reasoning process of the Tribunal.

9. In my view, it is clear from the paragraphs that I have cited from the Tribunal’s reasons that the mistake made by the Tribunal was critical to its decision, and, thus, the error made led it to fail properly to exercise its jurisdiction. For those reasons, the application will succeed and the Tribunal’s decision will be quashed and the matter remitted to it for consideration according to law. 

Grounds 3 and 4

1. For the sake of completeness I will briefly consider grounds 3 and 4 in the amended application. The third ground is that the Tribunal wrongly conflated the migration legislation and New South Wales legislation and website instructions to determine the issue of entry into de facto relationships. In my view, that is not made out on the Tribunal’s reasoning. 

2. Counsel for the applicant sought to establish that because the Tribunal had accepted the applicant as a very credible and open witness it ought to have accepted her evidence that was inconsistent with a finding of a de facto relationship, but that instead it focused wrongly upon the fact that her relationship with Mr Chen had been registered according to New South Wales law. 

3. What the Tribunal actually said was that the applicant gave clear evidence at the hearing that she was in a de facto relationship with Mr Chen by a particular time and that she had confirmed the finding of the Department to that extent. Regard to the transcript confirms the Tribunal’s reasons, first at p.4 of the transcript which is at p.121 of the Court Book. The Tribunal asked:  

   And prior to that date you were living with your husband in a de facto relationship.

   The applicant responded:

   Sure. Yes.

4. Later, at p.141 of the Court Book. the applicant appears to give slightly different evidence. The Tribunal said at line 41:

   So it says that you did not consider the relationship to be genuine and continuing at that time.

   The applicant said:

   Because in that time we were just a boyfriend/girlfriend.

   However, later in the hearing at p.145 of the Court Book at the passage beginning at the top of the page, the applicant explained that her relationship was:

   … just similar like another couple just that, you know, relationship. It doesn’t mean, like, similar to marriage because - - -

   [TRIBUNAL MEMBER]: Then why are you saying now that you acknowledge that you were in a de facto relationship over that time period and that the relationship always has been genuine?

   [APPLICANT]: We – we are in a relationship. It is true, but I didn’t confuse with that. But, like, only during these two weeks we live together. It’s normally like a whole 20 month we live together. But after I come back from China and we’re living together just like another couple, because, you know, well, yes, I guess, yes, like that. But I don’t know, it’s really – because I need to tell something like that.

5. The applicant in that passage did not explain what she meant by “similar to marriage”. But it was open, in my view, to the Tribunal to conclude from the applicant’s evidence that she and Mr Chen were living just like another couple; that she, in fact, admitted that she was in a de facto relationship at the relevant time. 

6. That means that although the Tribunal did refer to the registration of the relationship pursuant to the Relationships Register Act 2010 (NSW) that reference was not the driving force behind its conclusion. Indeed, it made reference to that registration simply because it had been brought up by Mr Chen in his visa application, and was one of the matters relied upon by the delegate which the Tribunal, at [48] of its reasons, found had been confirmed by the applicant’s own evidence. For those reasons, I would reject ground 3.

7. Ground 4 is that the Tribunal constructively failed to exercise jurisdiction because it merely repeated the error made by the delegate, namely, that the subclass 100 visa required that the applicant be a dependent of her mother at the time of the grant of the visa. In my view, that is insufficient of itself to warrant the conclusion that the Tribunal did not bring its own mind to bear on the issues before it. 

8. The Tribunal may have made the same mistake, but it is clear from its analysis of all of the evidence and the other elements of the material before it, including all of the written submissions prepared and submitted by the applicant’s lawyers that the Tribunal did, in fact, bring its own mind to bear on the issues, and so conducted its review.

9. The problem, as I have said in respect to ground 2, is that it was distracted from a true course in that review by its misunderstanding of the relevant visa criteria, and so failed to exercise its jurisdiction in that way. Ground 4 does not add anything to that error, and I therefore would reject it.

Conclusion

1. For those reasons, I make the following orders:

   (1)a writ of certiorari issue quashing the decision of the second respondent made on 24 February 2015; and

   (2)a writ of mandamus directed to the second respondent issue requiring the second respondent to determine the application for review of the delegate’s decision dated 9 September 2014, according to law. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 31 March 2016