Huai Xing Li v Minister for Immigration
[2008] FMCA 155
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUAI XING LI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 155 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.349A; 359A; 359A(3)(b); 474; pt.8 div.2 |
| Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 SZIYX v Minister for Immigration and Citizenship [2007] FMCA 308 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 |
| Applicant: | HUAI XING LI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2265 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 February 2008 |
| Date of last submission: | 5 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Counsel for the applicant: | Mr N. Poynder |
| Solicitors for the applicant: | Mr D. Sheen, Austin Hayworth & Lexon |
| Counsel for the respondent: | Ms L. Clegg |
| Solicitors for the respondent: | Mr P. Snell, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2265 of 2007
| HUAI XING LI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 19 June 2007 and handed down on 29 June 2007.
The Applicant, Huai Xing Li (“the Applicant”) claims to be from China and the wife of Mr Wing Hing Tang (“the Sponsor”) since 16 September 2003. Mr Tang was born in Hong Kong and, according to the Applicant’s visa application, was granted Australian citizenship on 15 August 1990.
The Applicant arrived in Australia on 3 September 2004 on a subclass UF 309 visa.
On 25 November 2003, the Applicant lodged an application for a Partner (Residence) (Class BC) Subclass 100 visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act. This was accompanied by a ‘Sponsorship for a Partner to Migrate to Australia’ form completed by the Applicant’s husband (“the Sponsor”).
On 12 August 2004, the Department wrote to the Applicant informing her that her application for a temporary visa, lodged 25 November 2003 had been approved.
On 12 September 2005, the Department wrote to the Applicant requesting evidence of her spousal relationship in support of the subclass 100 visa.
On 8 November 2005, the Applicant responded to the above letter enclosing statements from the Sponsor and others in support of the genuineness of her spousal relationship with the Sponsor.
On 2 March 2006, the Department wrote to the Applicant inviting her to attend a hearing on 14 March 2006.
On 4 April 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a Partner (Residence) (Class BC) Subclass 100 visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate was
“not satisfied that the Applicant is the “spouse” of the sponsor as this is defined at Regulation 1.15A, nor that the applicant continues to be sponsored for the grant of the subclass 100 visa by the sponsoring spouse.”
The Delegate cited the following reasons for this conclusion:
a)On 8 January 2005 officers of the Department located the Applicant working at a brothel in Canberra. At the hearing on 2 March 2006, the Applicant agreed that she had worked and given sexual favours in a massage parlour in Canberra on three separate occasions, though had since ceased this and the Sponsor stated that he was aware of her activities. The Applicant gave inconsistent evidence as to how often she had done this and her living arrangements while in Canberra at those times.
b)On 27 October 2005, the Department received information from the Fraud Analysis Unit alleging that the marriage between the Applicant and the Sponsor was contrived and the Sponsor was taking money from the Applicant for his assistance with her visa. The information also alleged that the Applicant was regularly sending money home to her boyfriend.
c)On 15 February 2006, the Department conducted a home visit to the address at which the Applicant and Sponsor claimed to live. The Applicant was not staying with the Sponsor at that address at that time or appeared nervous and gave several inconsistent accounts of why the Applicant appeared not to be living in the apartment with him.
On 19 April 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 19 June 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 July 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal decision
On 8 March 2007, the Tribunal invited the Applicant to attend a hearing on 24 April 2007. The Applicant and the Sponsor attended that hearing and gave oral evidence.
The Tribunal found the Applicant was not a witness of truth. The Tribunal stated that it “did not find the applicant to be a credible witness in key aspects of her oral evidence. At the hearing the applicant did not impress the Tribunal in responses in giving evidence which was often unconvincing and vague.” The Tribunal gave examples of the unsatisfactory nature of the Applicant’s evidence.
The Tribunal did not accept the Applicant’s explanation as to her absence from the home she allegedly shared with the Sponsor at the time of a home visit by department officers finding her explanation “unconvincing”.
The statutory declarations, provided by the Applicant in support of the genuineness of her relationship with the Sponsor, were not given weight by the Tribunal on the basis that none of those persons had “sufficient proximity to the applicant and sponsor and the content of these statutory declarations merely describes knowing the applicant and sponsor.”
The Tribunal noted that it needed to be satisfied that the Applicant met the criteria referred to in reg.1.15A in relation to the genuineness of her alleged spousal relationship with the Sponsor. The Tribunal was not satisfied at the time of the decision that the Applicant and her Sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship is genuine and continuing. The Tribunal found that it was not satisfied that the Applicant is the spouse of the Sponsor within the meaning of reg.1.15A. Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented before this Court Mr Poynder, of counsel.
By consent, the Applicant was given leave to file in Court and rely upon a further amended application which identified the following grounds:
“The grounds of the application are that the second respondent exceeded jurisdiction in making the decision to affirm the first respondent’s decision to refuse the applicant’s application for a Partner (Migrant) (Class BC) visa.
1.The second respondent failed to failed to comply with its obligations under s 359A(1) of the Migration Act 1958 to provide the applicant with particulars of information that it considered would be part of the reason for affirming the decision under review; namely, a file note dated 27 October 2005 recording receipt of “community information” relating to the applicant’s marriage”, information arising from a home visit by officers of the first respondent on 15 February 2006, and a file note recording a Departmental interview with the applicant on 31 March 2006.
2.The second respondent failed to comply with its obligation to review the decision of the first respondent, in that it failed to consider the applicant’s claim that she and her sponsor were attempting to have a child together.”
Ground 1
Counsel for the Applicant submitted that there was information that was part of the reason for the Tribunal affirming the decision under review and which therefore enlivened the obligations of s.359A of the Act. Counsel for the Applicant submitted that the information was contained in two file notes created by officers of the Department. The first (i) is a minute of a home visit by Departmental officers on 15 February 2006 (“the Minute”), marked Exhibit A2. The second (ii) is a file note of an interview with the Applicant and Sponsor dated 31 March 2006, marked Exhibit A3. Each is discussed below.
Minute of home visit on 15 February 2006
Counsel for the Applicant submitted that the following passage in the Tribunal decision disclosed information that should have been provided to the Applicant in accordance with s.359A of the Act:
“As set out in the Decision record of the Delegate, which the applicant provided to the Tribunal, a home visit was carried out by Departmental officers and this visit resulted in an assessment by the officers that the applicant was not at that point in time living with the sponsor. At the hearing the applicant did not assert that this assessment by Departmental officers was incorrect but rather claimed that her absence from the home and the absence of her personal belongings in the home, at that point in time, was merely temporary and was the result of the fact that she and her sponsor had had a fight and she had packed her few personal belongings and moved out. She claimed that she subsequently returned to the home after her husband informed her that the Departmental officers had visited.”
Counsel for the Applicant contended that all the information contained in the Minute was “information” that enlivened the obligations of s.359A of the Act.
The Minute was prepared by the relevant Departmental officers after their visit to the home in Campsie allegedly shared by the Applicant and Sponsor. The Minute disclosed differing accounts by the Applicant and the sponsor as to how and why the Applicant came not to be at the Campsie home at the time of the home visit on 15 February 2006. The Minute also contained details of the Departmental officers visual inspection of the home and recorded the following post visit discussion:
“Officers agreed that Mr TANG appeared agitated and nervous during our visit and was reluctant to grant us access to the premises.
Officers agreed that Mr TANG and Ms LI gave conflicting information regarding how she got to her friend’s house and we agreed that that had both lied with relation to how long she had been at been at the friend’s house.
Officers agreed that the only items relating to a female were sparse and were located in the spare bedroom. Officers also agreed that the bank statements which Mr TANG opened in front of us were old indicating it may be substantially longer ago than the New Year holiday since, if at all, Ms LI has been to the premises.
Officers agreed that there was more evidence that the relationship is not genuine and ongoing than vice versa and the community information on file appears to have merit.”
The Tribunal referred to the home visit in the Claims and Evidence section of its decision in the following terms:
“On 15 February 2006 a home visit was conducted by officers of the Department to the address which the applicant and sponsor claimed that they lived together. The officers of the Department were not satisfied that the applicant was living at the address.”
Counsel for the Applicant tendered a transcript of the Tribunal hearing. The transcript disclosed the following exchange between the Applicant and the Tribunal on the reasons why the Applicant was absent from the home on 15 February 2006:
“Q96O.K. Now, you’ve given me the delegate’s decision record, a copy of it, and I notice that one of the reasons why they refused you the visa 100, Subclass 100, is that the department conducted a home visit and from the details in that decision record it seems that there wasn’t much evidence of you two residing together in that house.
A(Int)Because the day they came to our house I was living in my friend’s place because at that time my husband and I had a small quarrel.
Q97 And what happened?
A(Int)Because at that time I just came to Australia, I did not have any friend and also I did not have class to attend so I wanted to go back to China for Chinese spring festival but my husband would not, would not let me go back. My husband’s reason is that we had already had application to the immigration department for a while and it was time that the immigration department would give us any response so during this period I should not leave Australia. I was quite angry at that time. And that time I thought that was just his excuse to keep me in Australia, not let me go back to China. I missed my home very much at that time. So I moved to stay with my friend, the friend I knew for many years. I thought if I moved to stay with my friend then my husband may agree with what I said, means may agree to let me go back to China for spring festival.
Q98 And when did you move out of the home?
A(Int)That should be the 29th of January, 2006.That was the Chinese spring festival.
Q99 And when did you move back again?
A(int)The immigration department’s officer came to my place in the 15 of February for a home visit so my husband called me up so after my husband call me the officer from the immigration department said I should go back, then I went back but by the time I arrive the officers from the immigration department had already left. Then the other day, that’s the 16 of February ---
INTERPRETER
Sorry, do you mind if I ask her to clarify?
TRIBUNAL MEMBER
Q100 No.
A(Int)So the 16 of February I moved back to stay with my husband. My husband helped me to move all my things back home.
Q101So you packed up everything to leave when you left on the 29th of January?
A(Int)Yes, that’s correct, because I did not have a lot of clothes. Yes, that’s correct, because I did not have a lot of clothes since I came to Australia. I did bring some clothes from China to Australia but then I gained some weight so a lot of clothes did not fit me any more but then after that time I did not buy a lot of clothes, I just put the old clothes into a box so basically I just pack up several clothes.
Q102So you packed up everything because you were angry with your husband or why did you sort of just, I mean, you said you had an argument so often people do have arguments but they don’t necessarily leave the home.
A(Int)Because I myself did not have a lot of belongings so I just brought those, those things I would need.
Q103No, I’m not worried about the amount of things, my point is it’s true that married couples will argue but that’s a little bit different from actually saying I’m going to take everything and leave the home.
A(Int)But I still have some thing at home, some old clothes at home, it’s just that I myself did not have a lot of things, especially that since I came to Australia I did not buy new clothes.
Q104 I’m not asking you about your clothes, I ---
ADVISER
Can I possibly help? Do you mind or shall I wait to the end?
TRIBUNAL MEMBER
Q105 Yeah, I’ll just keep going.
ADVISER
Yep.
TRIBUNAL MEMBER
Q106What I want you to explain to me is, you said that you moved out of the home because you’ve had an argument. So what did, and you had an argument with your husband because he wouldn’t let you go back to China. So why did you move out of the home?
A(Int)I just want to scare him a little b it so he would agree that I could go back to China.
Q107 So does that mean you stopped talking to him or ---
A(Int)Yes, I still talked to him and he even went there to look for me.
Q108 And what happened when he went to look for you?
A(Int)He just asked me to go home with him and still he did not agree with my plan that I should go back to China. We had, we had a meal together during the Valentine’s Day and he asked me to go back home with him. I did not agree to go back home with him so he sent me back to my friend and was quite angry. And my friend also talked to me and asked me to go back.
Q109And you say that you left, moved out of the home on the 29th of January.
A(Int)That’s correct, 29th. I just got a small backpack, sorry, not small, a big backpack with things in my backpack”
The Tribunal found the Applicant’s oral evidence about the dispute with her husband as the reason she left the family home to be “unconvincing.” The Tribunal noted “in particular, that the applicant stated she only left the home temporarily, yet decided to pack all of her belongings… The Tribunal does not accept that the applicant’s absence from the home and the absence of her personal effects at the time of the visit by the Departmental officers was simply a temporary circumstance resulting after a dispute.”
Counsel for the Applicant submitted that, in referring to the home visit carried out by the Departmental officers, the Tribunal was having regard to information that was part of its reason for affirming the decision under review and therefore all the information in the Minute of the home visit was information that enlivened the obligations of s.349A of the Act.
Counsel for the Applicant submitted that the Tribunal should have written to the Applicant identifying the full content of the Minute. In particular, the Tribunal should have identified its concerns about the inconsistencies in the explanations given by the Sponsor and the Applicant for the Applicant’s absence from the home; and that the Departmental officers had observed the Sponsor’s demeanour to be “agitated and nervous” during the visit.
However, a fair reading of the Tribunal’s decision does not suggest that the Tribunal had regard to the inconsistencies referred to in the Minute or the Sponsor’s demeanour.
In the circumstances, a fair reading of the Tribunal’s decision does not suggest that the contents of the Minute were part of the reason for the Tribunal affirming the decision under review.
Rather, a fair reading of the Tribunal’s decision and of the transcript referred to above in these Reasons, makes clear that it was the unsatisfactory nature of the Applicant’s explanation of the reasons why she asserted she was temporarily absent from the home that caused the Tribunal to make adverse credit findings. It was the adverse credit findings that were part of the reason for the Tribunal affirming the decision under review.
The information relied upon by the Tribunal in making its adverse credit finding was the information provided by the Applicant that she was temporarily absent from the home because of a fight she had with the Sponsor and which she alleged had caused her to pack her belongings and move out. That is not information that enlivens s.359A of the Act. That is information given to the Tribunal by the Applicant for the purposes of her review. Such information is specifically excluded from the obligations of s.359A of the Act by operation of s.359A(3)(b) of the Act.
File note of interview with Applicant and Sponsor dated 31 March 2006
Counsel for the Applicant also tendered a further Department file note dated 31 March 2006 of another interview by the Department with the Applicant and the Sponsor. Counsel for the Applicant submitted that this document was also information that enlivened the obligations of s.359A of the Act.
It is common ground between the parties that the document was referred to by the Tribunal in the Claims and Evidence section of its decision in the following terms:
“On 14 March 2006 the applicant and sponsor were interviewed together with the use of an interpreter to discuss the findings of the home visit. A summary of the home visit is contained in the Decision Record of the Delegate.”
However, there is no further mention of that document by the Tribunal in its decision.
In the circumstances, I do not accept that the information contained in the file note dated 31 March 2006 was part of the reason for affirming the decision under review.
In the circumstances, there was no enlivenment of the obligations of s.359A of the Act in respect of any information contained in that file note, nor the fact of the file note itself.
Accordingly, ground 1 is not made out.
Ground 2
Counsel for the Applicant submitted that the Tribunal failed to consider the Applicant’s claim of her wish to have a child with the Sponsor. In support of this contention, counsel for the Applicant submitted that the Tribunal failed to have regard to the corroborative evidence of (i) a herbalist that he had provided herbs to the Sponsor “for stronger sex energy but also to give birth to child. They are trying hard to have baby. I wish they can have baby soon”; and, (ii) the Sponsor.
Evidence of the herbalist
In the Claims and Evidence section of its decision, the Tribunal referred to this evidence in the following terms:
“A statutory declaration from Mr Guo Zhong stating that he owns a shop providing Chinese herbal medicines and that both the applicant and sponsor have come to his shop to buy goods and he believes that they had a genuine relationship.”
In the Findings and Reasons section of its decision, the Tribunal noted the statutory declaration provided by the herbalist and found that he knew the Applicant and Sponsor only because they frequented his shop. The Tribunal did not place weight on the evidence of the herbalist as establishing that a genuine spousal relationship existed because the Tribunal was not satisfied that Mr Zhong was a person “of sufficient proximity to the applicant and sponsor”. That is a finding that was open to the tribunal on the evidence and material before it and for which it provided reasons.
Counsel for the Applicant referred the Court to authorities in support of the proposition that there is a distinction between a decision maker being aware of information without paying attention to it and a decision maker giving consideration to such information (Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58]; SZIYX v Minister for Immigration and Citizenship [2007] FMCA 308 at [72]).
However, a fair reading of the Tribunal’s decision makes clear that the Tribunal understood that the Applicant was providing the herbalist’s evidence as corroborative of her claim of a genuine spousal relationship with the Sponsor. The Tribunal evaluated the evidence of the herbalist. The weight placed on the evidence of the herbalist evidence is a matter for the Tribunal. As referred to above in these Reasons. It was open to the Tribunal to find that the evidence of the herbalist was of little or no weight because of the lack of proximity of the herbalist with the Applicant and the Sponsor and the limited nature of their relationship.
Accordingly, the Applicant’s complaint that the Tribunal failed to have regard to the evidence of the herbalist is not made out.
Evidence of Sponsor
Counsel for the Applicant also submitted that the Tribunal failed to consider the evidence of the Applicant and the Sponsor about their desire to have a child in considering the genuineness of the spousal relationship.
A fair reading of the Tribunal’s decision discloses that the Tribunal discussed with the Applicant whether she and the Sponsor were saving money for any future plans and noted that the Applicant responded that she and the Sponsor planned to have a child but that her husband did not earn a huge amount of money “so have not yet saved any money but they would eventually like to buy a house.”
Counsel for the Applicant also referred to evidence of the Sponsor in which he said that he and the Applicant were using Ovuplan to assist having a baby. Counsel for the Applicant submitted that this evidence together with the fact that the Applicant and the Sponsor were going to a herbalist, was sufficient to give rise to a claim that the Tribunal was required to consider and determine.
However, a finding by the Tribunal in the terms of the claim made by the Applicant that she and the Sponsor were trying to have a child would not have been determinative of her application. Regulation 1.15A of the Migration Regulations identifies the criteria to which the Tribunal must have regard in considering the genuineness of a spousal relationship. These matters include the financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the persons commitment to each other. The desire to have a child is not a specific criteria that is required to be addressed by the Tribunal. It is no more than part of the factual matrix upon which the Applicant relied as evidence of the genuineness of her spousal relationship.
The Tribunal comprehensively rejected the Applicant’s evidence about the nature of her relationship with the Sponsor. In the circumstances, the Tribunal is not required to specifically reject each and every piece of evidence given by the Applicant in support of her claim (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [49]).
Having found the Applicant not to be a witness of truth, the Tribunal was not bound to consider further the Applicant’s evidence of her plan with the Sponsor to have a child.
As referred to above in these Reasons, where the Tribunal has found the Applicant not to be a witness of truth and found that it could place not weight on the corroborative evidence of witnesses as to the genuineness of the Applicant spousal relationship with the Sponsor, there was no obligation on the Tribunal to make further specific findings about those particular factual allegations.
The adverse findings, including the adverse credit finding, were open to the Tribunal on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to the facts as it found them to be.
In the circumstances, the Tribunal paid attention to all the relevant evidence of the Applicant and considered it in evaluating the Applicant’s claims of a genuine spousal relationship.
In the circumstances, there was no error on the part of the Tribunal to make any further finding about the Applicant’s claim that she and the Sponsor were attempting to have a child together.
Accordingly ground 2 is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, filed by way of application on 23 July 2007, is dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 15 February 2008
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