Huang v Minister for Immigration

[2020] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 409

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Visitor visa application – application for judicial review of the decision of the Administrative Appeals Tribunal affirming the decision of Delegate not to grant to the applicant a Visitor (Tourist) (Class FA) (Subclass 600) visa – applicant asserted as her sole ground that the Administrative Appeals Tribunal erred in its interpretation of ‘exceptional circumstances’ as that phrase appears in cl.600.215 of the Migration Regulations 1994 (Cth) – ground of application generalised and unparticularised – no jurisdictional error established by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.426A

Migration Regulations 1994 (Cth)

Cases cited:

Hatcher v Cohn (2004) 139 FCR 425

Shashidhar v Minister for Immigration and Border Protection [2017] FCA 253

Applicant: HONG HUANG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2399 of 2019

Judgment of: Judge Dowdy

Hearing date: 4 February 2020

Delivered at: Sydney

Delivered on: 4 February 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr C. Burke

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 16 September 2019 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 25 March 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2399 of 2019

HONG HUANG

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Adjournment Application

1. This matter was set down for final hearing at the first return date of this matter on 18 October 2019. On that occasion the Applicant opposed setting the matter down for today, claiming that she suffered from depression and pressure and to be seeing a psychologist at that time. No medical evidence was presented in support of that assertion and she sought that the final hearing not be set down for some eight or nine months. I regarded that requested delay for setting down the matter for hearing as unreasonable and scheduled the final hearing for today, 4 February 2020.

2. The Applicant yesterday filed an affidavit in the Registry dated 3 February 2020 which declares as follows:

   I, HONG HUANG of 119/38 Shoreline Drive, Rhodes, 2138, a retiree, affirm:

   1. I am the applicant in this matter.

   2.I live in the above-mentioned address with my daughter, my son-in-law and their daughter.

   3. My daughter and son-in-law are currently still in China for Lunar New Year. In light of the coronavirus outbreak, their China Southern Airline flight CZ301 which was scheduled to depart from Guangzhou, China to Sydney, Australia on 2 February 2020 has been cancelled. It is uncertain as to when their flight to return to Australia will be arranged and even if they do, they will be required to self-quarantine for 14 days from their date of departure from China.

   4. My daughter and son-in-law are important witnesses for the hearing before the court. They are to give evidence in relation to the compelling and compassionate circumstances relating to my case. Attached herewith and marked as Annexure A is a copy of email and message evidencing the cancellation of China Southern Airline flight CZ301.

   5.I humbly and respectfully seek this honourable court to reschedule the hearing to late March or later.

   6. Your Honour's leniency and understanding will be much appreciated.

3. In short, the Applicant seeks an adjournment on the basis that her daughter and son-in-law are important witnesses for the hearing today, but are currently in China and not in Australia. However, they could not be witnesses today because:

   a)first, those two witnesses did not give evidence before the Tribunal. They were not called before the Tribunal and the Applicant herself did not appear at the Tribunal hearing;

   b)second, no affidavits have ever been sworn by them in compliance with the previous orders of the Court that any affidavit evidence be put on by 13 December 2019; and

   c)third, any evidence by these foreshadowed witnesses will be irrelevant to the proceeding in light of the fact that I am not conducting a merits review hearing of the case, but am only involved in a process of judicial review and determining whether the decision of the Tribunal is legally reasonable.

   So, the fact that the daughter and son-in-law are currently in China and not in Australia is entirely irrelevant to the proceeding today.

4. The Applicant also referred from the Bar Table to being in some sort of ill health. There is no medical evidence in support of that claim and there is not a skerrick of evidence to the effect that she is not able to meaningfully participate in the hearing today. Indeed it is clear to me from her submissions and assertions from the Bar Table, which have been translated by the interpreter, that she is able to meaningfully participate in today’s hearing.

5. Accordingly the application for an adjournment is refused.

Introduction

1. The Applicant is a female citizen of China aged 58 years.

2. By Application filed in this Court on 16 September 2019 she seeks to quash and have re-determined in accordance with law, the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 15 August 2019 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 27 June 2018 refusing to grant to her a Visitor (Tourist) (Class FA) (Subclass 600) visa (Visitor visa).

Background

1. The Applicant last arrived in Australia on 26 June 2017 as the holder of a Visitor visa which ceased on 26 September 2017. On 9 October 2017 the Applicant was granted a further Visitor visa which allowed her to further remain in Australia until 24 June 2018.

2. On 18 June 2018 the Applicant lodged her application for the Visitor visa under consideration here, which would have extended her stay in Australia to 18 June 2019, resulting in a total period in Australia of almost two years. In her Visitor visa application form, the Applicant gave as her reason for the further stay “to temporarily stay in Australia to take care of my daughter and little granddaughter”.

3. In support of her Visitor visa application she also lodged a Personal Statement dated 18 June 2018 (Personal Statement), which expanded on her reason for further staying in Australia to care for her daughter and one year old granddaughter, claiming that her daughter and son-in-law work in Australia “very hard” so that they needed her here to take care of the granddaughter who was “weak and sickly”. Further, she also claimed that she could support herself financially and that her daughter and son-in-law had lodged an application for a Contributory Parent (Subclass 143) visa on her behalf.

4. The Applicant had to satisfy cl.600.215 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) which in substance required that she showed “exceptional circumstances” existed for the grant of the Visitor visa which would result, if granted, in her being authorised to stay in Australia for a total period of more than 12 consecutive months, as clearly was the case here.

Decision of Delegate

1. The Delegate was not satisfied that exceptional circumstances existed such as would be required for the grant of the Visitor visa and accordingly refused the grant of the Visitor visa to the Applicant.

Decision of Tribunal

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 9 July 2018.

2. By letter dated 25 July 2019 from the Tribunal to the Applicant’s registered migration agent, the Applicant was invited to a hearing before the Tribunal on 15 August 2019 to give evidence and present arguments. The letter, amongst other things, advised that if the Applicant did not appear, the Tribunal might proceed to make a decision on the review application in her absence.

3. In fact the Applicant, without any explanation, did not appear at the hearing scheduled before the Tribunal on 15 August 2019 and the Tribunal determined that it would make a decision on the review without taking any further action to enable the Applicant to appear before it, as authorised by s.426A(1A)(a) of the Migration Act 1958 (Cth) (the Act).

4. At [18] of its Decision Record the Tribunal set out the relevant background to the Visitor visa application, considered the Personal Statement and noted that there was no medical evidence to support the claim that the granddaughter of the Applicant was weak and sickly.

5. At [13] of its Decision Record the Tribunal had accepted that the Applicant wished to spend time in Australia to care for her daughter and granddaughter.

6. At [14] – [15] of its Decision Record the sense and meaning of the expression “exceptional circumstances” was stated correctly by the Tribunal in that the word “exceptional” meant unusual, atypical or out of the ordinary and reference was made to a number of germane authorities, including the statement of Kiefel J (as she then was) in Hatcher v Cohn (2004) 139 FCR 425 at 439 [49] – [50].

7. At [16] of its Decision Record the Tribunal noted that it had had regard to the guidance provided by Procedures Advice Manual 3 in relation to exceptional circumstances.

8. In the result the Tribunal was not satisfied that the circumstances relied upon by the Applicant to satisfy cl.600.215 of the Regulations were exceptional and it affirmed the Delegate’s decision not to grant the Visitor visa to the Applicant.

Ground of Attack on Tribunal Decision in this Court

1. The only Ground asserted by the Applicant is as follows:

   1. The Administrative Appeals Tribunal erred in their interpretation of the meaning of ‘exceptional circumstances’ under clause 600.215 of the Migration Regulations 1994 when exercising its decision-making powers and failed to give proper and genuine consideration to the First Applicant’s circumstances. The error in construction amounts to jurisdictional error.

Consideration

1. This Ground is generalised and unparticularised.  It does not explain how it is said that the Tribunal erred in the meaning which it gave to the expression “exceptional circumstances” or why it is said that the Tribunal “failed to give proper and genuine consideration to the …. Applicant’s circumstances”.

2. In my view, the Tribunal gave the proper sense and meaning to the expression “exceptional circumstances” in accordance with relevant legal authorities: see the decision of Murphy J in Shashidhar v Minister for Immigration and Border Protection [2017] FCA 253 at [22] – [27].

3. Further, the Tribunal gave proper and meaningful consideration to the Applicant’s claims as stated in her Visitor visa application form and Personal Statement. It recognised that she had been initially granted a three month Visitor visa and that she had then been granted a further nine month Visitor visa, so that she had been in Australia for a period of a year less two days. The Tribunal accepted her claim that she wished to spend further time in Australia to care for her daughter and granddaughter. No claim of the Applicant was overlooked by the Tribunal.

4. However, unfortunately for the Applicant the Tribunal did not accept that in the circumstances this reason constituted exceptional circumstances such as to satisfy cl.600.215 of the Regulations. In my view there was nothing legally unreasonable with the Tribunal so finding, and its failure to be satisfied that there were exceptional circumstances had an intelligible and sufficient justification and was not arbitrary, capricious or otherwise legally unreasonable.

Conclusion

1. In my view, the Ground asserted by the Applicant is not made out and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 February 2020