Huang v Minister for Immigration

[2013] FCCA 937

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 937

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – show cause hearing – no arguable case raised in application for relief sought – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.425, 476,
Migration Regulations 1994 (Cth), r.1.03, Sch.2, Sch.4
Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407)
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Applicant: PAO HUI HUANG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1281 of 2013

Judgment of: Judge Nicholls

Hearing date: 24 July 2013

Date of Last Submission: 24 July 2013

Delivered at: Sydney

Delivered on: 31 July 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 11 June 2013 is dismissed pursuant Rule 44.12(1(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1281 of 2013

PAO HUI HUANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 11 June 2013, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 16 May 2013, to affirm the decision of the respondent Minister’s delegate to refuse the grant of a New Zealand Citizens (Family Relationship) (Temporary) visa (“the visa”) to Ms Pao Hui Huang (“the applicant”).

Background

1. The applicant claimed to be a citizen of the People’s Republic of China (“China”), from Taiwan (Court Book – “CB” – CB 33). She applied for the visa on 26 May 2011 (CB 1). There is only one subclass of visa in the visa class for which the applicant applied. That is, subclass 461 in Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

2. The applicant applied for this visa on the basis of her “de facto” relationship with a New Zealand citizen, who first arrived in Australia on 27 January 2007 as the holder of a subclass 444 visa (“special category” visa) (CB 7 and CB 62).

3. The applicant’s previous migration history is, relevantly, as follows. She first arrived in Australia in October 2005 on a student visa (CB 77). She departed Australia in March 2006 and she subsequently re-entered with a visitor visa on 28 July 2006 (CB 26.3). While in Australia she was granted a student visa on 19 April 2007 (CB 76). That student visa ceased on 30 April 2009 (CB 62.3). [A number of other arrivals and departures occurred in this period – CB 76 to CB 77.]

4. Nonetheless, the applicant remained in Australia without a visa. She was then granted a Bridging Visa E on 12 October 2009. It is important to note that this was more than 28 days after the cessation of the last student visa she held (CB 76).

5. The applicant departed Australia on 29 November 2009. She again entered Australia on 4 March 2011 on a visitor visa valid until 4 June 2011 (CB 75). In the meantime, she applied for the visa on 26 May 2011 (CB 1).

6. The criteria for the relevant subclass of visa were (at the relevant time) set out in Sch.2 to the Regulations. Of particular relevance is cl.461.223 of Sch.2:

   “The applicant:

   (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4010, 4013, 4014 and 4021 ; and

   (b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.”

   [Emphasis added.]

7. Relevantly, Public Interest Criterion (“PIC”) 4014 (in Sch.4 to the Regulations) is in the following terms:

   “(1) If the applicant is affected by either of the risk factors specified in subclauses (2) and (4):

   (a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or

   (b) the Minister is satisfied that, in the particular case:

   (i) compelling circumstances that affect the interests of Australia; or

   (ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the departure.

   …

   (4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

   (a) an unlawful non-citizen; or

   (b) the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

   (5) Subclause (4) does not to apply to a person if:

   (a) the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or

   (b) a bridging visa held by the person at the time of departure was granted:

   (i) within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or

   (ii) while the person held another bridging visa granted:

   (A) while the person held a substantive visa; or

   (B) within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case may be.”

8. An “eligible New Zealand citizen” is defined as (r.1.03 of the Regulations):

   “… means a New Zealand citizen who:

   (a) at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009; and

   (b) either:

   (i) was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Category) visa that was in force on that date; or

   (ii) was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001; or

   (iii) has a certificate, issued under the Social Security Act 1991 , that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.”

The Delegate

1. The Minister’s delegate found as follows (CB 60 to CB 63). Public Interest Criterion 4014(5) did not apply on the facts presented. Therefore, the applicant had to satisfy PIC 4014(1)(a) or (b).

2. The applicant did not meet PIC 4014(1)(a) as the application for the visa was not made more than three years after she last departed Australia.

3. The delegate had regard to the applicant’s statements made in relation to PIC 4014(1)(b), but was not satisfied that there were any circumstances that either affected the interests of Australia or any of the categories of persons referred to in PIC 4014(1)(b).

The Tribunal

1. On 12 October 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 64). The Tribunal acknowledged receipt of that application on 14 October 2011 (CB 78). No action appears to have been taken by the Tribunal until 5 April 2013 when the applicant was invited to a hearing on 15 May 2013 (CB 86). The applicant attended the hearing with her partner and was assisted by an interpreter in the Mandarin language (CB 90 to CB 91).

2. The Tribunal’s decision was made on 16 May 2013 (CB 103). The Tribunal affirmed the delegate’s decision for similar reasons.

3. First, the Tribunal found that the applicant was affected by a “risk factor”, namely, under PIC 4014(4). This was because the relevant Bridging Visa E had been granted more than 28 days after her last held substantive visa (her student visa) had expired. She left Australia as the holder of the Bridging Visa E.

4. Second, the application for the visa was not made more than 3 years after the applicant departed from Australia (she departed Australia on 29 November 2009 and applied for the visa on 26 May 2011). Therefore, PIC 4014(1)(a) was not met by the applicant.

5. Finally, the Tribunal had regard to the applicant’s submissions in relation to compelling or compassionate circumstances but did not consider that such circumstances existed in her case.

The Application to the Court

1. The grounds of the application, as well as the orders sought by the applicant, are set out in an “Attachment” to her application to the Court. That document provides

   “Orders sought by Applicant

   …

   1, I disagree with Immigration and MRT’s decision. They did not consider that I have been in a genuine relationship with my sponsor. They did not consider the fact that I had compelling reasons to waive the 3 years.

   2, MRT should granted my visa for NZ Citizen (Family Relationship) (Temporary) visa.

   The Grounds of the Application are:

   1, I am a Chinese citizen from Republic of China and have been in a genuine relationship with my sponsor. I did have compelling reasons to affect the interests of Australia, however MRT did not consider carefully and ignored my explanation

   2, It is not fair for DIAC and MRT to refuse my application, I hope the court can provide me with more favourable decision.”

   [Errors in the original.]

2. I have, as the Minister submitted, taken the “orders sought” by the application to be further complaints, or “grounds”, raised by the applicant. They are considered below.

Before the Court

1. At the first Court date in this matter the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Given the nature of the “grounds” in the application, I did not set the matter down for a hearing. Rather, I urged the applicant to consider obtaining legal advice.

2. I also attempted to explain to the applicant the nature of these proceedings and the distinction between the role and power of the Minister and his officers, the Tribunal and the Court. Even on a charitable view, the “grounds” of the application to the Court did not rise above a challenge to the findings of the Tribunal and its conclusion. In effect, the applicant sought impermissible merits review. I urged her to consider that, without some “legal error” in the Tribunal’s decision, she could not succeed before the Court.

3. The applicant was also put on notice that, if nothing further was presented by her to the Court, the Minister may seek an immediate show cause hearing on the next occasion. The matter was set down for mention on 24 July 2013.

4. When the matter was called on that day the applicant again appeared in person. She was assisted by an interpreter in the Mandarin language. Ms M Stone appeared for the respondent Minister.

5. The applicant confirmed that she had nothing further to present to the Court. She pressed the “unfairness” of the Tribunal’s decision and blamed her former (unnamed) migration agent for “allowing” her student visa to expire and failing to submit a new student visa application “in time”.

6. She stated that she had recently obtained some advice from a migration agent, but wanted to “continue” seeking legal advice. She said that she knew of “someone” in “Chinatown”, but had not contacted them “because they charge too much”. Nonetheless the applicant insisted that she wanted to press her application to the Court and wanted “a couple of months” to find a lawyer.

7. I therefore understood the applicant to be seeking an adjournment for that purpose. The Minister opposed the adjournment and pressed that the matter proceed to an immediate show cause hearing.

8. I agreed with the Minister that, in the circumstances presented, it was not appropriate to grant any adjournment and, further, that any such adjournment would be futile.

9. The applicant has already had a reasonable opportunity to arrange the provision of legal advice. That opportunity was provided to her from the first Court date until the mention date (that is, just over a month). In that time, she took no action to pursue legal advice. While the prospect of legal costs may have been a factor in her inaction, she did not satisfactorily explain any difficulty in light of her relationship, with her “boyfriend” with whom, on her own statement, she said she had been living for some years and had been financially supporting her.

10. Further, as the Minister’s submitted, the applicant’s primary “grievance”, as she expressed it to the Court, was about her former migration agent’s conduct (see above). It is important to note that that conduct was during the time of the expiry of the applicant’s student visa. The migration agent does not appear to have been involved in the application for the (current) visa nor, importantly, during the review before the Tribunal. In light of that, the applicant’s “grievance” against her migration agent, and affording her the opportunity to obtain legal advice in relation to the matter, would not assist her before the Court.

11. Third, I agreed with the Minister that, on any plain reading of the Tribunal’s decision record and in the circumstances of this matter, there was no utility in granting the applicant further time given the lack of merit in her application to the Court (see further below). No legal advice could reasonably alter this situation.

12. The adjournment request was refused. The matter proceeded to a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

13. The Minister’s submissions to the Court helpfully set out the Tribunal’s reasoning in the current case. In particular, that the applicant was in a relationship with a New Zealand citizen and, on the basis of that relationship, she applied for the visa. The visa, relevantly, required that if a “risk factor” applied to an applicant, then the applicant must satisfy PIC 4014(1). One of the “risk factors” was if a person departed Australia while unlawful or while the holder of a bridging visa. The applicant has departed Australia on a Bridging Visa E, albeit because (on the applicant’s evidence) her migration agent had failed to file her student visa application. As a result, that “risk factor” applied to the applicant and she was required to satisfy PIC 4014(1).

14. In order to satisfy PIC 4014(1), one of two requirements needed to be met by the applicant. First, that she applied for the visa more than three years after departing Australia as a holder of a bridging visa. The applicant departed Australian on a Bridging Visa E on November 2009 and made her application on May 2011. That is, within 3 years of her departure on the bridging visa.

15. In those circumstances, in order for the applicant to meet PIC 4014(1) the applicant needed to meet the second requirement. That is, that either the Minister, or the Tribunal standing in the Minister’s shoes, was satisfied that there were compelling circumstances that affected Australia’s interests, or compassionate or compelling circumstances which affected an Australian citizen, Australian resident or an eligible New Zealand citizen.

16. Although the applicant’s partner was, and is, a New Zealand citizen, the Tribunal found that he was not an “eligible New Zealand citizen”, as that term is defined in r.1.03 of the Regulations (see above at [9]). The Tribunal found that as the applicant’s partner had not been in Australia on or before 26 February 2001 and no relevant (to the Regulations) certificate had been issued, he did not meet the definition of an “eligible New Zealand citizen”.

17. In those circumstances, the Tribunal considered whether there were compelling circumstances in Australia’s interests for granting the visa and found, with reference to the applicant’s employment, that there were not. In light of that, the applicant did not meet PIC 4014 and the Tribunal affirmed the delegate’s decision to refuse the grant of the visa to the applicant.

Consideration

1. For the reasons that follow, the application to the Court does not raise an arguable case for the relief sought.

2. Ground one seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The applicant complains that the Tribunal did not carefully consider her compelling reasons to remain in Australia and it ignored her explanations.

3. First, the assertion that she had compelling reasons, on its own, does not reveal jurisdictional error on the part of the Tribunal. The Tribunal did consider her submissions and arguments. It was not persuaded that they rose to meet the description of “compelling”. The Tribunal’s findings were reasonably open to it on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicant really challenges the Tribunal’s findings in this regard (noting that even if there were “compelling or compassionate” circumstances, they were not in relation to an “eligible New Zealand citizen” as defined in the Regulations).

4. Nor, on the evidence presented to the Court, can it be said that the Tribunal ignored the applicant’s relevant explanations. The Tribunal invited the applicant to a hearing (s.425 of the Act). She has not put any evidence before the Court to challenge the Tribunal’s references in its decision record to what it said occurred at that hearing. In the circumstances, the assertion that the Tribunal ignored her explanation can only be understood as a complaint that the Tribunal did not accept that her explanations were such as to establish compelling circumstances in relation to an eligible New Zealand citizen.

5. Ground two asks the Court to intervene to provide “a more favourable decision”. Without some “legal error” in the Tribunal’s decision the Court cannot intervene to assist the applicant. Nor does the Court have jurisdiction to provide a more favourable visa outcome to the applicant.

6. The complaint about a lack of fairness in the decision is understandable in circumstances where the applicant continues to be in a de facto relationship with someone who has permission to remain in Australia. However, the Tribunal was constrained by the prescription set out in the Regulations. Whether the decision is “fair” is, in that sense, not relevant. For the reasons set out above, the Tribunal’s decision was lawful and the applicant was afforded a “fair” process (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). Ground two is not made out.

7. The applicant’s grievances under the heading of “orders sought” also do not assist her. In particular, the first “order sought” simply states the applicant’s disagreement with the Tribunal’s decision. As submitted by the Minister, that is not a basis on which the Court can overturn the Tribunal’s decision. The Tribunal considered the various arguments advanced by the applicant, including her relationship with her partner, and correctly concluded that her partner was not an “eligible New Zealand citizen” and therefore their relationship did not satisfy subclause (1)(b) of PIC 4014.

8. The second “order sought” asserts that the Tribunal should have granted the applicant the visa. That assertion is not an assertion of a reviewable error. It does not raise an arguable case for the relief sought in the application to the application to the Court.

Conclusion

1. Neither the grounds of the application to the Court, the “orders sought” in that application, nor the applicant’s oral complaints to the Court, have revealed an arguable case for the relief sought. Nor, for that matter, and in any event, can I otherwise see jurisdictional error on the part of the Tribunal. In those circumstances, the application to the Court should be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). I will make an order accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  31 July 2013