Fu v Minister for Immigration

[2016] FCCA 571

FEDERAL CIRCUIT COURT OF AUSTRALIA

FU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 571

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (now Administrative Appeals Tribunal) to refuse to grant applicant a Partner visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F(2)(a), 5F(3), 65(1)(b), 476

Migration Regulations 1994 (Cth), reg.1.15A, cl.801.221(2)(c) of sch.2

Cases cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

Applicant: YANNA FU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 984 of 2014

Judgment of: Judge Dowdy

Hearing date: 9 March 2016

Delivered at: Sydney

Delivered on: 24 March 2016

REPRESENTATION

The Applicant: The Applicant appeared in person.

Solicitor for the First Respondent:	Ms K Hooper of DLA Piper
The Second Respondent:	The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 984 of 2014

YANNA FU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a female citizen of China aged 32 years, having been born on 17 January 1984.

2. She seeks in this proceeding certiorari to quash a decision of the Second Respondent, the Migration Review Tribunal (Tribunal), dated 14 March 2014, affirming a decision of a Delegate of the First Respondent, the Minster for Immigration and Border Protection (Minister), dated 2 May 2012, refusing to grant her a Partner (Residence) (Class BS) (Subclass 801) Visa (Partner Visa) under s.65 of the Migration Act 1958 (Cth) (Act).

3. Although not expressly sought in her application, she implicitly at least seeks mandamus directed to the Second Respondent requiring it to determine her application for review of the Delegate’s decision according to law.

Background

1. On 16 March 2010 the Applicant applied for the Partner Visa which is dealt with in a two stage process; first by the issue of a Partner (Temporary) (Class UK) (Subclass 820) Visa which was issued to the Applicant on 25 February 2011 and, upon issue of that temporary visa, the Applicant was subsequently assessed by reference to the criteria for the grant of the Partner Visa.

2. In this case such criteria were those prescribed as having to be satisfied at the time of decision by cl.801.221 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations). The only relevant criteria applicable to the Applicant under cl.801.221 was under subclause 801.221(2) which provided:

   801.221 

   …

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the holder of a Subclass 820 visa; and

   (b)  the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

   (i)  the sponsoring partner; or

   (ii)  the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

   (c)  the applicant is the spouse or de facto partner of the sponsoring partner; and

   (d)  subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

3. The Applicant provided a body of documentation to the Department in support of her application, including a NSW Marriage Certificate indicating that the Applicant and Mr Bo Wei had married in New South Wales on 19 September 2011.

4. However, the Delegate of the Minster on 2 May 2012 refused the grant of the Partner Visa to the Applicant because she was not satisfied that the Applicant was the spouse of her sponsor, Mr Bo Wei, as defined by s.5F of the Act and, therefore, the Applicant did not meet the requirements under cl.801.221(2)(c) of sch.2 to the Regulations and did not satisfy the criteria for the grant of a Subclass 801 Visa. The Delegate found that the Applicant was not the spouse or de facto partner of Mr Bo Wei.

Decision of Tribunal

1. The review hearing before the Tribunal took place on 27 February 2014 when the Applicant attended in person, together with Mr Bo Wei, a female friend Ms Li, and the Applicant’s registered migration agent, as well as an interpreter. There was a large amount of documentation submitted to the Tribunal by the Applicant in support of her Partner Visa application, including statutory declarations, photos and bank statements.

2. The Tribunal’s reasons indicate that many matters were discussed and considered during the course of the hearing. The Tribunal accepted that there was a valid marriage for the purpose of s.5F(2)(a) of the Act and then it considered, as it was required to do by the combined effect of s.5F(3) of the Act and reg.1.15A of the Regulations, the issues of financial aspects of the alleged relationship between the Applicant and Mr Bo Wei, the nature of the household, the social aspects of the relationship and the nature of their commitment to each other.

3. I have carefully considered the reasons of the Tribunal and they seem to me to be careful, rational and coherent. They reveal a process of the sifting, weighing and evaluation of the oral and documentary evidence before it. Unfortunately for the Applicant the Tribunal was not satisfied that, at the time of its decision, the Applicant and Mr Bo Wei were in a spousal relationship and, therefore, the Applicant did not meet cl.801.221(2)(c) of sch.2 to the Regulations. The Tribunal affirmed the decision of the Delegate not to grant the Applicant the Partner Visa for which she had applied.

4. In particular the Tribunal had significant concerns about the credibility of Ms Fu and Mr Bo Wei in regard to their claims of being in a genuine relationship. It found some of the Applicant’s evidence to be unpersuasive, which reflected adversely on the credibility of the Applicant generally. It found other explanations of hers to be illogical and unpersuasive. The Tribunal was not even satisfied that the Applicant and Mr Bo Wei shared a household or, if they did, with whom they shared it. The Tribunal regarded it as significant that neither of the parents of the Applicant or Mr Bo Wei gave evidence of the alleged spousal relationship. It was not satisfied that any relationship between the Applicant and Mr Bo Wei was to the exclusion of others.

5. The Tribunal placed limited weight on the supporting documentation from the Applicant because of concerns it had about her credibility. The Tribunal was not satisfied there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing. Instead, the Tribunal came to the view that the Partner Visa application had been lodged by the Applicant to achieve a migration outcome rather than there being a genuine partner relationship between Mr Bo Wei and herself.

6. These findings of the Tribunal appear to me to have been open for it to make and it appears that the Tribunal raised with the Applicant quite clearly its concerns about aspects of the Applicant’s evidence, both oral and documentary, during the course of the hearing.

7. Indeed, the Tribunal at the hearing invited the Applicant to comment on or respond further to the matters that had been raised and discussed, and the Applicant said she would make further comments in writing after the hearing. She was allowed until 6 March 2014 to do this. Taking advantage of this further opportunity, the Applicant’s migration agent made further submissions, and forwarded further documentation and photos by letter received 6 March 2014 (incorrectly dated 6 February 2014).

Application to this Court

1. The grounds for the relief sought in this Court by the Applicant are as follows:

   1.     I don’t accept the decision.

   2.     I think the tribunal has prejudice to us.

2. This Court’s jurisdiction under s.476 of the Act is limited to providing relief in respect of jurisdictional error by the Tribunal and that jurisdiction does not allow for the reviewing of the merits of the Tribunal’s decision or factual findings made by it. The role of this Court is to ensure that the Tribunal, which was charged with the responsibility of factually investigating the Applicant’s claims, has acted according to law.

3. The first ground of the application is not a ground which could support any finding of jurisdictional error and it is rejected.

4. The second ground could be interpreted as charging the Tribunal with either actual bias, probably in the form of pre-judgment, or that a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an impartial mind to the decision making process.

5. Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative tribunal, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 ([48]).

Actual Bias

1. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

2. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at 97:

   97.        The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

3. The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437 ([33]).

Apprehended Bias

1. On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 334-345. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners v Nicholls (supra) at [32].

Consideration of Claims of Bias

1. In my opinion there is no basis for any claim by the Applicant that she has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.

2. First, the Tribunal’s reasons on their written face do not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

3. Second, when I invited the Applicant to enlarge upon the claim of prejudice made in ground 2 she addressed the Court on matters that went to impermissible merits review, rather than to any form of breach of procedural fairness by way of bias or apprehended bias.

Conclusion

1. It is clear that the Tribunal did not reach a state of satisfaction that the Applicant was the spouse of the sponsor, Mr Bo Wei, at the time of its decision. From reading the reasons of the Tribunal, that is not a conclusion which was in any way irrational, capricious or which could be otherwise criticised as somehow unlawful. The Tribunal did not have the relevant state of satisfaction. In these circumstances, s.65(1)(b) of the Act required that the Partner Visa be refused and that the decision of the Delegate of the Minister be affirmed.

2. There is, in my view, no jurisdictional error disclosed and the application is to be dismissed with costs. I reserve for the present time the consideration of what those costs should be.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 24 March 2016