HOU v Minister for Immigration

[2016] FCCA 1212

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1212

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision not to grant applicants a Partner (Residence) (Subclass 801) visa (801 visa) – whether the Tribunal considered first applicant’s evidence when determining it was not satisfied the first applicant and sponsor were in a genuine spouse relationship – whether it was reasonably open to the Tribunal not to be satisfied first applicant and sponsor were in a genuine spouse relationship – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 5F(1), 5F(2), 5F(3), 359AA

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

First Applicant: BIFEN HOU

Second Applicant: HUIJING ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1252 of 2014

Judgment of: Judge Manousaridis

Hearing date: 7 May 2015

Delivered at: Sydney

Delivered on: 25 May 2016

REPRESENTATION

The first applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms M Stone of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1252 of 2014

BIFEN HOU

First Applicant

HUIJING ZHANG

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are mother and daughter, seek judicial review of a decision by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Partner (Residence) (Subclass 801) visa (801 visa). The Tribunal affirmed the delegate’s decision because it was not satisfied the first applicant (applicant) and the sponsor nominated in the application for the 801 visa were in a genuine spouse relationship.

Background

1. To have been entitled to an 801 visa, the first applicant (applicant) had to satisfy, among other things, the criteria specified in cl.801.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Under that subclause, the applicant was required to hold, at the time of decision, a Subclass 820 Partner (Provisional) visa (820 visa), and for at least two years to have passed after the day on which the application was made for an 801 visa. The applicant also had to be “the spouse or de facto partner of the sponsoring partner”.  

2. “Spouse” is defined in s.5F of the Migration Act 1958 (Cth) (Act). Subsection 5F(1) provides that a “person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship”. Subsection 5F(2) of the Act provides that, for the purposes of s.5F(1) of the Act, persons are in a married relationship if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as husband and wife to the exclusion of others; and

   (c)the relationship between them is genuine and continuing; and

   (d)     they:

   (i)live together; or

   (ii)do not live separately and apart on a permanent basis.

3. Subsection 5F(3) provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. Regulations have been made pursuant to s.5F(3) of the Act, and these are to be found in reg.1.15A of the Regulations. I will refer to some of the provisions of this regulation later in these reasons.

4. In her application for an 801 visa, the applicant claimed she and her sponsor were neighbours in the late 1980’s when they were living in Fujian Province.[1] In 1990 the sponsor travelled to Australia on a student visa. In 1999 the sponsor returned to China and he discussed with the applicant his investing in a hydroelectric station in China. The sponsor left $20,000 to the applicant for her to invest on behalf of the sponsor, and the sponsor and the applicant later both bought some shares.

   [1] CB68-69

5. In 2000 the applicant visited Australia for the Sydney Olympics. She stayed with the sponsor for seven weeks. Because the sponsor took good care of her during the visit, the applicant decided to let her daughter study in Australia. In 2003 the applicant’s daughter was granted a student visa, and she and her daughter came to Sydney. The applicant permitted her daughter to stay with the sponsor for the duration of her studies.

6. From 2004 to 2006 the sponsor visited the applicant three times when she was living in Nanjing city. The applicant and the sponsor also maintained telephone contact, and their relationship became stronger. On 28 February 2009 the applicant arrived in Australia and stayed at the sponsor’s home, and “have been living together since that day”. On 7 May 2009 the applicant and the sponsor married. The applicant claimed she and the sponsor had paid a 10% deposit on the purchase of “joint-owned property at Burwood”, and she and the sponsor “are still looking for other properties in Inner West of Sydney and we may buy some properties in the near future”.

7. The applicant was granted an 820 visa on 14 October 2009.[2]

   [2] CB382, [3]

8. At around 8.15 pm on 23 May 2012, officers of the Department of Immigration and Border Protection (Department)[3] visited a house in Cumberland Road, Auburn and interviewed the applicant.[4] The applicant was asked about where the sponsor was, the date of birth of the sponsor, when and where the applicant’s and the sponsor’s wedding took place, whether the applicant had photographs of the wedding, whether the sponsor had been previously married, whether the sponsor had children from a previous marriage, who owned the property at Cumberland Road, whether the applicant had a joint bank account with the sponsor, whether the applicant’s and the sponsor’s wages were paid into the account, what the sponsor did for a living, and what activities she and the sponsor engaged in as a couple.

   [3] Then known as the Department of Immigration and Citizenship

   [4] CB223-229

9. The sponsor arrived at the house in the course of the officer’s questioning the applicant. The officers then questioned the sponsor. He was asked about what he did for a living, about his previous marriage, whether the applicant supported his children, and how often he saw them. The sponsor was then asked when he had last travelled overseas. The sponsor said it was in March 2012 when he travelled to the United States. He said he travelled alone on business, and denied he had travelled with his former wife. When the sponsor was informed that Departmental records showed that the applicant’s former wife travelled on the same flight, the sponsor said he did not see his former wife.

10. With the sponsor’s permission, the Departmental officers viewed the sleeping quarters. The sponsor was asked to sight his clothing. The officers looked inside the wardrobe but only female clothing was visible. The applicant directed the Departmental officers’ attention to an overcoat of indiscriminate gender. Neither the applicant nor the sponsor appeared to understand the officer’s question about where the sponsor kept his underwear. The sponsor said that his work clothes were “on the building site”, which was contrary to an earlier answer the applicant had given, and that the sponsor had corroborated, that he worked at multiple locations. The officers then inspected the bathroom and observed a large quantity of obviously female toiletries. There were no products, such as a razor or other shaving items, that would appear likely to be used by a male. The sponsor said that he kept these items “on site” and shaves at work.

11. The following morning the sponsor initiated a telephone conversation with one of the Departmental officers. He said he had an argument with the applicant, and he now wished to tell the truth about his trip to the United States. He said that his assertion that he had travelled for business was untrue. He said he went to the United States with his former wife because she had been diagnosed with a tumour, and she was seeking specialist medical treatment in the United States. The sponsor said he had travelled with his former wife because she could not speak English.

Before the Tribunal

1. The applicant and sponsor gave evidence before the Tribunal of the circumstances in which they came to separate from their former spouses, how they married each other, what had become of the property they each held with their former spouses, and the applicant’s and sponsor’s current living arrangements. The applicant also provided to the Tribunal a significant amount of evidence relating to the financial aspects of her relationship with the sponsor. The evidence revealed the applicant and the sponsor owned two properties as tenants in common, and are joint mortgagors of the properties. The applicant and sponsor also hold a joint account, and have joint obligations for rates and utility accounts.[5]

   [5] CB387, [45]

2. The Tribunal invited the applicant, pursuant to s.359AA of the Act, to respond to a number of items of information. The first item of information was an allegation that the applicant’s former husband had asked the applicant to invest a large amount of his money in an Australian property on his behalf in 2010. The allegation to which the Tribunal appears to have referred is an allegation that was reported to the Department on or about 30 March 2010.[6] The applicant emphatically denied the allegation.[7]

   [6] CB147-148

   [7] CB383, [15]

3. The second item of information the Tribunal referred to was movement records that indicated the sponsor had travelled to the United States with his former wife in 2012, and what the sponsor said about the trip during the Departmental officers’ home visit. The Tribunal put to the applicant that this might indicate the sponsor and his former wife were still in a spouse relationship.[8] The applicant said that the sponsor had travelled with his former wife without telling the applicant because the sponsor was worried it would upset the applicant. The applicant said the former wife had been diagnosed with a life threatening condition, namely, a blood blister or lesion on her liver. The former wife had asked her son to accompany her on a “much desired holiday” to the United States in 2012. The sponsor’s son, however, was too busy with his business, and therefore asked the sponsor to accompany the sponsor’s former wife.[9]

   [8] CB383, [16]

   [9] CB383, [17]

4. The third item of information was passenger cards that showed that in August 2010 the applicant and sponsor had put different intended addresses on their incoming passenger cards. The applicant provided an address in Cumberland Road, Auburn, but the sponsor provided an address in Eccles Street, Ashfield.[10] The applicant said she and the sponsor had travelled to China together but the sponsor had not paid attention to the passenger card he had completed, the address he gave was his old address, and the applicant’s son, who lived at that address, had picked-up the sponsor at the airport.[11]

   [10] CB384, [19]

   [11] CB384, [20]

5. The fourth item of information was the Departmental officers’ report of their home visit. The Tribunal referred to, among other things, the officers observing no male clothing, underwear, toiletries or property, the sponsor not being familiar with the location of items in the bedroom, and there being no work clothes at the house.[12] Before the Tribunal the applicant stated that, just before the home visit, she had thrown away all of the sponsor’s work clothes because they were damaged and old, and that she and the sponsor did not understand what was required when the officers asked to see personal items. The applicant also said the sponsor shaved in his car on the way to building sites.[13]

   [12] CB384

   [13] CB384, [22]

6. The fifth item of information is in effect two items of information. The first is the sponsor’s having informed an officer of the Department on the day following the officer’s home visit that, contrary to what the sponsor told the Departmental officers at the time of the home visit, he did travel with his former wife to the United States because she was seeking medical advice because she had a tumour, and the sponsor travelled with her to assist her because she did not speak English. The second item of information is the sponsor’s representative later stating that the sponsor accompanied his former wife on a tour of the United States because she had a life-threatening condition.[14]

   [14] CB384, [23]

7. In response to the Tribunal putting to the applicant this information, the applicant said that the day after the home visit and interview, the sponsor called an officer of the Department and explained he had not told the applicant about the trip with his former wife, the applicant was now upset at him, and she urged the sponsor to call the Departmental officer to explain what happened. The applicant and the sponsor both said that the sponsor’s former wife had a large growth on her liver, the former wife wanted to travel to the United States, and the sponsor agreed to accompany her because his son had asked him to help out.[15]

   [15] CB385, [24]

Tribunal’s decision

1. The issue the Tribunal identified it had to consider was whether the applicant and sponsor were in a genuine and continuing spouse relationship, and whether they had a mutual commitment to a shared life as husband and wife to the exclusion of all others.[16]

   [16] CB385, [27]

2. The Tribunal accepted the applicant and spouse are validly married;[17] that the applicant and the sponsor have a financial relationship in which they have joint investments and financial obligations, and that they have a high level of trust in maintaining these investments and meeting their obligations;[18] that the applicant and sponsor, and their respective families, are well known to each other;[19] and that they have purchased property together.[20] The Tribunal found, however, there was evidence that outweighed this evidence showing the applicant and spouse are not in a genuine spouse relationship.[21]

   [17] CB386, [32]

   [18] CB387, [47]

   [19] CB388, [48]

   [20] CB388, [49]

   [21] CB388, [47]-[49]

3. First, the Tribunal considered that in 2010 the sponsor specified Eccles Street, Ashfield in his incoming passenger card as his address, rather than Cumberland Road, Ashfield, because the sponsor was living in Eccles Street, not Cumberland Road. The Tribunal accepted that it was possible that this could have been an error and by itself the information may not be significant. But when considered with other evidence, the applicant’s recording Eccles Street, Ashfield as his address indicates the applicant and the sponsor were not living together at the time the sponsor travelled to China in 2010.[22]

   [22] CB388, [51]

4. Second, the Tribunal relied on the observations made by the Departmental officers on the home visit. The Tribunal did not consider the applicant satisfactorily explained the absence of the sponsor’s clothing, male toiletries, underwear, and shaving equipment, as well as the sponsor’s apparent lack of familiarity with the applicant’s bedroom at Cumberland Road.[23]

   [23] CB388, [52]

5. Third, the Tribunal found that the sponsor’s travel to the United States in 2012 with his former wife indicated the sponsor and his former wife continued to be in a spousal relationship. The Tribunal accepted the sponsor’s former wife had a serious medical condition, and that she may well have wanted to visit the United States because she was concerned she may not have an opportunity in future. The Tribunal, however, did not accept the sponsor would go on an organised tour to the United States with his former wife for two weeks without telling the applicant of the purpose of the trip. The Tribunal found implausible the explanation the sponsor gave for not having informed the applicant of the trip.[24] Further, the Tribunal referred to the sponsor’s having initially denied to the Departmental officer that he had travelled to the United States with his former wife, and even when he accepted that he had travelled with his former wife, the sponsor gave a different account to that which he finally gave to the Tribunal. The sponsor was, therefore, prepared to be untruthful about the purpose of his trip to the United States, and the Tribunal did not consider him to be a credible witness. This suggested “the spouse relationship between the applicant and the sponsor has been contrived to obtain a migration outcome for the applicant and her daughter who is studying in Australia”.[25]

   [24] CB388-389, [53]

   [25] CB389, [55]

6. The Tribunal, therefore, concluded that, given its findings, it was not satisfied that, at the time of decision, the applicant and the sponsor were in a genuine spouse relationship.

Grounds of application

1. At the hearing before me, the applicant appeared without legal representation, and made submissions on her own behalf. She requested, and I permitted, that the sponsor also make submissions. I will first identify and consider those submissions before I identify and consider the grounds of review stated in the applicants’ application for review.

Submissions made at hearing before me

1. The applicant submitted the Tribunal relied on a letter and otherwise gave very little consideration to the evidence and claims the applicant made. The letter to which the applicant intended to refer is what the applicant said her migration agent described as the “dob in letter”. That is intended to be a reference to the information of an allegation received from a person concerning the applicant and the sponsor (Information).[26] The Information was to the effect that the sponsor “still lives with his family”, and that “[y]ou can conduct a site visit to the place and you will see a lot”. The Information was also to the effect that the applicant’s former husband gave the applicant money to invest in an apartment in Australia.

   [26] CB147-149

2. I do not accept the Tribunal relied on the Information, and otherwise gave little consideration to the evidence on which the applicant relied. The Tribunal identified all the relevant evidence on which the applicant relied. The Tribunal also considered evidence which it was of the view showed the applicant and the sponsor were not in a genuine spouse relationship. The Tribunal weighed the evidence, and concluded it was not satisfied the applicant and the sponsor were in a genuine spouse relationship. It was reasonably open to the Tribunal not to be satisfied for the reasons it gave.

3. It is true that the Tribunal referred to the Information; but it did so for the limited purpose of putting to the applicant the allegation that her former husband had provided the applicant with money to invest on his behalf. As I have already noted, the applicant denied the allegation. The Tribunal accepted the applicant’s denial, and noted there was no other evidence before the Tribunal regarding such transaction. The Tribunal, therefore, did not include in its weighing of the evidence any finding to the effect that the applicant’s former husband had provided the applicant money to invest on his behalf.

4. The sponsor submitted that the Tribunal had in effect predetermined the issue,[27] the Tribunal’s decision was strongly prejudiced, the Tribunal chose not to read the documents the applicant provided, and the Tribunal ignored “our daily life . . . routine”.[28] There is no substance in these submissions. 

   [27] T12.45: “To start with, it made a decision before any assessment was done.”

   [28] T13.45

5. As I have already noted, the Tribunal accepted the applicant and spouse are validly married;[29] that the applicant and the sponsor have a financial relationship in which they have joint investments and financial obligations, that they have a high level of trust in maintaining these investments and meeting their obligations;[30] that the applicant and sponsor, and their respective families, are well known to each other;[31] and that they have purchased property together.[32] The Tribunal, however, considered there was evidence pointing to the applicant and the sponsor not being in a genuine spouse relationship that outweighed those matters. The sponsor made no submission to the effect that it was not reasonably open to the Tribunal to rely on the matters on which it did rely for concluding the applicant and sponsor were not in a genuine spouse relationship.

   [29] CB386, [32]

   [30] CB387, [47]

   [31] CB388, [48]

   [32] CB388, [49]

1. The sponsor complained that the Tribunal “kept mentioning the relationship between me and my ex-wife”.[33] As I understood the sponsor, he submitted that he gave the Tribunal the one story about his travelling with his former wife to the United States. Somewhat inconsistently, the sponsor likened his statements to the Department about his travelling to the United States with his former wife to a person who goes through a red light to save the life of another person.[34] These matters also disclose no jurisdictional error. It was reasonably open to the Tribunal to consider that the sponsor had given inconsistent accounts of his travelling with his former wife to the United States, and to rely on that inconsistency to find the sponsor lacked credibility and, in turn, that the sponsor and the applicant did not share a genuine spouse relationship.

   [33] T14.15

   [34] T15.20

2. The sponsor also made submissions to the effect that he was aware of the identity of the person who gave rise to the “dob-in letter”.[35] The sponsor, however, did not raise this before the Tribunal. His reason for not doing so is that he was not asked. That is no reason for the sponsor not raising the matter before the Tribunal, assuming it was relevant. The sponsor and the applicant ought to have been aware of the “dob in letter”. The delegate, in her decision record, referred to the Department having received information on 30 March 2010 alleging that the spousal relationship between the applicant and the sponsor was not genuine and had been contrived.[36] In any event, as I have already noted, apart from putting to the applicant for her comment one of the allegations from the “dob in letter”, the Tribunal did not rely on it; and because the Tribunal accepted the applicant’s denial of the allegation, the “dob-in letter” played no part in the Tribunal’s not being satisfied the applicant and the sponsor were in a genuine relationship.

   [35] T15.30

   [36] CB247

Ground 1 of application

1. The applicants raise 3 grounds in support of their application for judicial review. The first is:

   I disagree with Immigration and MRT’s decision as I believe that our spouse relation have been genuine and lasting. MRT member has not comprehensively and fairly considered my review application and supporting evidence. The member has strong prejudice to my case which is totally unaccepted.

2. This ground contains two allegations. One is that the Tribunal did not consider comprehensively or fairly the applicants’ claims. The other is that the Tribunal was prejudiced against the applicants.

3. This ground cannot be made out on the evidence that is before me. The Tribunal identified evidence that was both favourable and unfavourable to the applicant’s claim that she was in a genuine spouse relationship with the sponsor. It was reasonably open to the Tribunal on the basis of the evidence not to be satisfied for the reasons it gave that the applicant and sponsor were not in a genuine spouse relationship. There is nothing to suggest that the Tribunal arrived at its non-satisfaction on the basis of anything other than its good faith consideration of the evidence that was before it.

4. The only submission the applicant made in relation to ground 1 is that the Tribunal “relied purely… on the dob-in letter as well as total imagination”.[37] For the reasons I have already given, the Tribunal referred to the “dob-in letter” only to the extent it put to the applicant an allegation contained in it, but otherwise did not rely on anything contained in the “dob-in letter” given it accepted the applicant’s denial of the allegation.

   [37] T11.25

5. Ground 1, therefore, fails.

Ground 2 of application

1. The second ground contained in the application is

   MRT did not give a good and responsible consideration to my explanation at the hearing and evidence submitted to MRT before the hearing. MRT member did not reopened my case according to MRT rules, instead the member just repeated all the questions from DIBP which is not [fair].

2. The applicant made no submission to me in relation to this ground.

3. For reasons I have already given, I do not accept the Tribunal did not consider the applicants’ case, or the evidence on which the applicants relied. To the extent the ground complains that the Tribunal erred by relying on the question and answers contained in the report prepared by the Departmental officers following their house visit, that complaint discloses no jurisdictional error. The matters the Departmental officers reported of their visit was relevant to the issue the Tribunal had to consider, namely, whether the applicant and the sponsor had a genuine spouse relationship; and it was reasonably open to the Tribunal to rely on those matters provided the Tribunal gave the applicant particulars of the information reported by the Departmental officers as required by s.359AA of the Act. As recorded in its reasons for decision, the Tribunal gave to the applicant particulars of the information recorded by the Departmental officers, and informed the applicant of the manner in which the information would be the reason or part of the reasons for which it would affirm the delegate’s decision.

4. Ground 2, therefore,  fails.

Ground 3 of application

1. The third ground stated in the application is:

   It is shocking that MRT member did not show any of her concerns or query to my explanations at the hearing, she only made a perfunctory effort. I don’t think I have been fairly treated in the hearing.

2. The applicant made no submission to me in relation to this ground.

3. In effect, this ground claims the Tribunal did not put to the applicant matters which were of concern to it, and the Tribunal did not consider, or had prejudged the applicants’ claim. I do not accept that is so. As I have already concluded, the Tribunal put to the applicant the matters on which the Tribunal came to rely for not being satisfied the applicant and sponsor were in a genuine spouse relationship; and the Tribunal considered the applicants’ claims, identified the evidence that point both in favour of and against the applicants’ claims, and concluded, for reasons that were reasonably open to it, not to accept the applicant and sponsor were in a genuine spouse relationship.

4. Ground 3, therefore, fails.

Other matters

1. In that section of the application headed “Order sought by Applicant”, the applicants included three paragraphs. The first is a statement to the effect that the applicant is married to her husband and is in a genuine, and continues to be in a genuine, spouse relationship. The second paragraph states that the applicant and her husband have been living together and have shared their commitment to each other; that they jointly own properties in Australia, and have a joint investment in China, and that her relationship with her husband has been witnessed by family and friends. The third paragraph is a statement that the applicant cannot live without her husband, and she and her husband will never be apart from each other.

2. All of these matters go to the merits of the application that was before the Tribunal. This Court does not have jurisdiction to determine the merits of the applicants’ claims that were before the Tribunal.

Conclusion

1. I propose to order that the application be dismissed, and that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 25 May 2016