Huang v Minister for Immigration
[2013] FCCA 403
•31 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUANG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 403 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the applicant had a genuine spousal relationship with his sponsor – applicant seeking merits review. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 65(1)(b), 359A Migration Regulations 1994, cll.820.211, 820.211(1), 820.211(2), 820.211(2)(d)(ii), reg.1.15A, 1.15A(3), 1.15A(4), 1.15A(5) |
| Craig v South Australia (1995) 184 CLR 163 Moussa v Minister for Immigration and Multicultural Affairs [2002] FCA 68 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 |
| Applicant: | MING HUANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1143 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 May 2013 |
| Date of Last Submission: | 10 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 31 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Yu |
| Solicitor for the Respondents: | Mr Psaltis |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 28 December 2012 be dismissed.
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1143 of 2012
| MING HUANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Huang applies to review a decision of a migration review tribunal which affirmed a decision of the first respondent to refuse to grant the applicant a Partner (Temporary) (Class UK) visa pursuant to s.65 of the Migration Act1958.
In my view the application for review raises no valid claim that the tribunal’s decision was affected by jurisdictional error. Accordingly, the application must be dismissed. My reasons for dismissing the application are as follows.
Statutory scheme
If the Minister is satisfied that a person has validly applied for a visa and the criteria prescribed for its grant have been satisfied, then the Minister may grant the visa. Otherwise, the Minister must refuse the visa: s.65(1)(b) of the Act.
A Partner (Temporary) (Class UK) visa has only one subclass – subclass 820 (Partner). The criteria for the grant of that subclass 820 visa are contained in part 820 of Schedule 2 to the Migration Regulations 1994. Only cll. 820.211(1) and (2) were relevant to Mr Huang’s application. They are as follows.
820.211 (1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18 — by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa — either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
It will be seen that cl.820.211(2) relied upon the applicant being the spouse of a person who meets certain requirements. Mr Huang’s case was that he was indeed the spouse of such a person.
For the purposes of part 820, the meaning of spouse is given by s.5F of the Act. At the time of Mr Huang’s visa application, that provision was in the following form:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), 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 all 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) 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. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
Regulation 1.15A was in the following form:
1.15A Spouse
(1) For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3)
Background facts
Mr Huang married his sponsor on 1 December, 2009. He applied for a Partner (Temporary) (Class UK) visa on 18 August, 2010. On 3 May, 2012 the first respondent’s delegate refused to grant the visa because the delegate was not satisfied that the applicant was the spouse of the sponsoring partner as defined in s.5F of the Act. The delegate was not satisfied that Mr Huang satisfied cl.820.211(2) of Schedule 2 to the Regulations.
Mr Huang’s application for review by a tribunal was made on 11 May, 2012. Mr Huang was invited to appear before the tribunal at a hearing on 19 September, 2012. He attended the hearing on that day. Although he was represented by a migration agent at the relevant time, the agent did not attend the hearing. Mr Huang attended the hearing as did his sponsor as well as a friend, Mr Les Lesilei. The hearing was conducted with the assistance of an interpreter.
After the hearing, the applicant’s migration agent provided further documents to the tribunal by way of email on 24 September, 2012. On that same day the tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to respond in writing to information which the tribunal considered would, subject to his response, be the reason or part of the reason to affirm the decision under review. He was required to provide his response by 1 November, 2012.
On 15 October, 2012 Mr Huang appointed a new representative to assist him in the conduct of his application. On the next day, that agent requested an extension of time to respond to the s.359A invitation. The time for responding to that invitation was extended to 20 November, 2012.
By letter dated 4 November, 2012 Mr Huang delivered further submissions to the tribunal in response to the s.359A invitation.
On 7 December, 2012 the tribunal notified Mr Huang of its decision to affirm the decision of the first respondent’s delegate not to grant him a Partner (Temporary) (Class UK) visa nor a Partner (Residence) (Class BS) visa.
The tribunal’s decision
The tribunal found that:
a)Mr Huang did not meet the requirements of cl.820.211(2) of Schedule 2 of the Regulations because the tribunal was not satisfied that Mr Huang was the spouse or de facto partner of the sponsor within the meaning of s.5F of the Act.
b)Further, the tribunal found that the applicant did not satisfy criterion 3001 in Schedule 3 of the Regulations in that the applicant did not last hold a substantive or criminal justice visa within the requisite time period.
c)The tribunal further went on to find that there were no compelling reasons for not applying the Schedule 3 criteria for the purposes of cl.820.211(2)(d)(ii) of the Regulations.
d)Finally, the tribunal decided that Mr Huang did not satisfy any other subclause of cl.820.211.
The grounds of review
Mr Huang’s application specifies three grounds of review. I will deal with each of those grounds in turn. Before doing so however, it is necessary to make some observations about the general approach taken by Mr Huang and his advisors to this application. At the commencement of this hearing Mr Huang sought to rely on an affidavit by himself and an affidavit by his sponsor Li Jiang. Those affidavits dealt in some detail with the evidence that each of those persons wished to give about the nature and extent of their relationship. The nature and extent of their relationship was a central issue before the tribunal. The affidavits were to be relied upon to take issue with the findings made by the tribunal about the relationship between Mr Huang and his sponsor. The affidavits sought to add to the body of evidence that was before the tribunal and upon which the tribunal made its decision. It did not go to any of the procedural matters before the tribunal or the processes adopted by it. In those circumstances I refused Mr Huang leave to rely on those affidavits.
The first ground of the application asserts that the Tribunal “erred by misconstruing and misapplying the applicable law because the Tribunal misconstrued and misapplied s.5F of the Migration Act 1958 (Cth), Regulation 1.15A of the Migration Regulations 1994 (Cth) (“Regulations”) and clause 820.211 of schedule 2 of the Regulations.”
As one can see, little is given away by that ground of the application. There are no particulars which provide any insight into the way in which the tribunal is said to have misconstrued and misapplied the relevant law. In the written submissions filed on behalf of the applicant, the following submissions are made in support of this ground:
In the present case, the applicant and his sponsor got married in Sydney on 1 December 2009, which is a valid marriage for the purpose of Migration Act 1958 (Cth) ("the Act"). They have been living together since marriage except for the short periods of the sponsor's yearly visits to their relatives in China. The applicant could not go back to China with his sponsor every time she went due to his visa problem. During the periods when the sponsor was overseas, the couple maintained contacts by phone calls.
The couple have a mutual commitment to a shared life as husband and wife to the exclusion of all others. They enjoyed each other's company and they share the household chores together.
The sponsor is in poor health. She was assessed and diagnosed as schizophrenia, severe anxiety and depression. She has been hospitalised a few times because of her unstable mental state. The applicant often drives her to see doctors and takes care of her in her daily life.
In order to prove that their relationship is genuine and continuing, the applicant has provided to the Tribunal ample evidence, including: statutory declarations from their landlord, friends, relatives, photos, utility bills, bank statements, car insurance, life insurance, etc.
The statutory declaration from landlord, the statement of the applicant's cousin, Mr Nan Huang and the joint lease were proofs that the couple are living together.
(footnotes omitted)
I accept the first respondent’s submissions that there is no attempt by Mr Huang to establish a jurisdictional error on the face of the decision of the tribunal. This ground of review seems to be squarely addressed to re-agitating the merits of the review before the tribunal. An examination of the merits of the tribunal’s decision is not the function of this Court.
Moreover, I accept the first respondent’s submissions that an examination of the tribunal’s decision record reveals that it did not misapply or misconstrue the relevant law. The tribunal correctly identified the relevant law that applied to Mr Huang’s application. It correctly identified the criteria that needed to be met and the relevant parts of the Act and Regulations which were brought to bear by those criteria. The tribunal records in detail the factual basis of Mr Huang’s application for review and it sets out in detail the evidence before the tribunal.
I accept that the tribunal considered matters which were relevant to a consideration of whether Mr Huang and his sponsor were spouses for the purposes of the Act by considering:
a)the financial aspects of the relationship as required by reg.1.15A(3);
b)the nature of the household as required by reg.1.15A(4);
c)the “social aspects of the relationship” as required by reg.1.15A(5); and
d)the nature of the person’s commitment to each other as required by the Regulations.
The tribunal’s findings are summarised at paragraphs 90 and 91 of its findings:
“90. The Tribunal is mindful that there is some evidence in support of the existence of a spousal relationship; the joint bank account, life insurance and car insurance, the social recognition amongst the applicant’s family and friends. However, the Tribunal considers that this is outweighed by evidence indicating that the parties do not have a mutual commitment to a shared life together – in particular the applicant’s migration history of repeatedly lodging applications to achieve a migration outcome; together with his unsatisfactory explanations for the significant discrepancies identified during the home visit by departmental officers in May 2011; his lack of knowledge of the sponsor’s stay and treatment at the Princess Alexander Hospital in Brisbane in 2009 and his lack of interest in the sponsor’s past history. On the basis of her evidence before it the Tribunal is not satisfied that the applicant has a commitment to a shared life with the sponsor as husband and wife to the exclusion of all others as required by s.5F(2)(b).
91. The Tribunal is therefore not satisfied that the applicant is the spouse or de facto partner of the sponsor within the meaning of s.5F and accordingly does not meet the requirements of cl.820.211(2)(a) and (c).”
I accept the first respondent’s argument that the above paragraphs demonstrate that the second respondent correctly considered the relevant law and then applied the law to the facts and the circumstances of Mr Huang. The decision reached by the tribunal was clearly open on the evidence before it.
The second ground of review relied upon by Mr Huang is as follows:
“The Tribunal erred by failing to take into consideration all relevant factors because the Tribunal did not consider “all of the circumstances of the relationship” in its consideration of the question posed by regulation 1.15A(2) of the Regulations, which it was required to do.”
The written submissions for Mr Huang on this point identified five matters which he argued the tribunal did not properly consider. They are:
a)Mr Huang and his sponsors “real financial situation”;
b)“The fact that the couple has been living in this address since January 2010”;
c)“The evidence of money remittance to the daughter of the applicant”;
d)“The fact the English level of both the applicant and the sponsor is not very good”; and
e)“The health condition of the sponsor”.
As to the first matter, the Tribunal stated “there is no evidence that at the time of the application, the applicant and the sponsor jointly owned real estate or other major assets, had any joint liabilities, a joint bank account or a joint responsibility for household expenses.” It was suggested in the course of oral argument that that statement was factually incorrect, but upon closer enquiry it was conceded that in fact the statement was factually correct although there was evidence before the tribunal that there had at one point been a joint bank account between Mr Huang and the sponsor. Notwithstanding that, the tribunal’s factual statements were correct.
The other matters raised by Mr Huang were matters which were clearly considered by the tribunal. Mr Huang’s argument, however, is with how the tribunal dealt with those matters in its reasons for decision. I accept the first respondent’s argument that this ground of review seeks to engage in a merits review of the tribunal’s decision.
The tribunal’s decision reveals a lengthy discussion of all of the material relied upon by Mr Huang before both the delegate and the tribunal. It included an examination of the material accompanying the application for review, the additional documents provided by Mr Huang at the hearing and the oral evidence of the applicant and his witnesses given at the hearing. It included an examination of the documents and information sent to the tribunal on 24 September, 2012 and then in response to the s.359A request. I accept the first respondent’s submissions that the second respondent undertook a detailed and careful consideration of all the circumstances of the relationship put before it by Mr Huang.
Mr Huang also argues that the tribunal “identified a wrong issue in paragraph 79 of the Decision Record”. He says that the second respondent incorrectly concluded that there were inconsistencies between a statutory declaration signed by one of Mr Huang’s witnesses, a Mr Maher on 27 October, 2012 and a photograph which was described as having been taken with a Mr and Mrs Jolley in 2011.
As the first respondent explained in submissions, it is apparent from an examination of the materials relating to this part of the evidence before the tribunal, that the tribunal has incorrectly assumed that the photograph taken with Mr and Mrs Jolley in 2011 was one taken with Mr Maher in circumstances where Mr Maher’s statutory declaration (made in October, 2012) states that he had only known Mr Huang and his sponsor for 6 months.
The tribunal has clearly made a mistake of fact. However, in doing so, it has not, I accept, identified a “wrong issue” as that term is used in cases such as Craig v South Australia (1995) 184 CLR 163. Errors of fact do not ordinarily give rise to jurisdictional errors: SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]. An error that “does not destroy the foundation of the decision” is not a jurisdictional error which leads to the decision being overturned: Moussa v Minister for Immigration and Multicultural Affairs [2002] FCA 68 at [6].
I accept the first respondent’s submission that it is apparent from the tribunal’s decision that there were a range of factors which were carefully weighed and taken into account in deciding to affirm the decision under review. I accept that the tribunal’s reasons (esp. at paras 90 and 91) demonstrate that the error with respect to Mr Maher’s statutory declaration was not a mistake of fact which could be said to “destroy the foundation of the decision”.
The third ground of review is that the decision of the tribunal was affected by apprehended bias “because the Tribunal was of the opinion that due to the applicant’s migration history and that at the time he was pursuing a relationship with his sponsor he was an illegal immigrant which suggested that the applicant married his sponsor to obtain permanent residence”.
As the first respondent points out, an allegation of bias is serious and it is an allegation which must be clearly made and distinctly proved. The authorities suggest that rarely will it be the case that bias will be established based on the decision record alone.
The test of apprehended bias requires the party asserting bias to demonstrate that “a fair minded lay observer who is properly informed as to the nature of the proceedings the matters in issue and the conduct which is said to give rise to an apprehension of bias” might reasonably apprehend that a decision maker might not have brought an impartial mind to the application.
To support his argument, Mr Huang points to the tribunal’s reference to his migration history and the tribunal’s suggestion to him that he had repeatedly lodged applications for visas that were not genuine so as to achieve “a migration outcome”. For example, at paragraph 61 of the decision record the tribunal put those things to Mr Huang and said:
“this may lead the Tribunal to doubt your credibility and to conclude that you have pursued the relationship with Ms Jiang to obtain permanent residence and that you do not have mutual commitment to a shared life as husband and wife to the exclusion of others and as such are not in a spousal relationship within the meaning of the Migration Act”.
In his written submissions, Mr Huang accepts the validity of the tribunal’s concerns. He specifically submits “it will be evident from the migration history of the applicant that when his application came before the MRT and the MRT quite properly would have had serious reservations concerning the credibility of the application”.
Moreover, Mr Huang points to the use by the tribunal member of the phrase “illegal immigrant” on two occasions when it was putting these matters to him. Mr Huang suggests that the use of that phrase carries negative connotations which demonstrate an apprehension of bias on the part of the tribunal.
Whilst the use of the phrase “illegal immigrant” was unfortunate, in my view, it does not lead to the conclusion that a fair minded lay observer, properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to the apprehension of bias, might reasonably apprehend that the tribunal member may not have brought an impartial mind to the application. The tribunal’s reasons for decision demonstrate that it carefully considered all of the material put before it by Mr Huang and it clearly reached its decision by weighing up the various factors which both proved and disproved Mr Huang’s case. His migration history was but one of a number of factors which the tribunal considered when reaching its conclusion. His migration history was properly raised with him (as he concedes in his written submissions) and he was given the opportunity to deal with the tribunal’s concerns that arose out of his migration history.
Conclusion
In my view, the application fails to demonstrate that the tribunal’s decision is affected by any error, let alone a jurisdictional error. The application must be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 31 May 2013.
Date: 31 May 2013
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