Jeong v Minister for Immigration

[2005] FMCA 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JEONG & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 804

MIGRATION – MRT decision – on‑shore spouse visa application – not made within 28 days of expiry of last substantive visa – “compelling reasons” for waiving time requirement – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A, Pt 8

Migration Regulations 1994 (Cth), reg.1.15A(1)(b), 1.15A(2A)(b), Sch.2 cl.820.211, 820.211(2), 820.211(2)(a), 820.211(2)(d), 820.211(2)(d)(ii), Sch.3 criteria 3001, 3001(1)

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096
Minister for Immigration & Multicultural Affairs v Dunne [1999] FCA 204
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FCA 211
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

First Applicant: KI JA JEONG

Second Applicant: BAN SEOK KIM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2892 of 2004

Judgment of: Smith FM

Hearing date: 26 May 2005

Delivered at: Sydney

Delivered on: 26 May 2005

REPRESENTATION

Counsel for the Applicants: First applicant in person

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. First applicant to pay the respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2892 of 2004

KI JA JEONG & BAN SEOK KIM

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 3 September 2004.  The Tribunal affirmed a decision of a delegate which found that the applicants were not entitled to the grant of partner (temporary) (class UK) visas nor partner (residence) (class BS) visas. 

2. Eligibility for these visas was based upon the circumstances of the first‑named applicant, Mrs Jeong, and her marriage to an Australian citizen.  The second‑named applicant is her son, who is a minor and whose eligibility depends upon his mother’s satisfaction of the substantive criteria.  Entitlement to the second, permanent residence, visa was dependent upon prior satisfaction of the temporary class UK visa, and it was the criteria for that visa which both the delegate and the Tribunal found not to be satisfied.  From hereon I shall refer to Mrs Jeong as “the applicant” in the case, and shall address the Tribunal’s reasoning in relation to the temporary visa. 

3. Before I refer to the applicant’s circumstances, I note that the Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, that jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that the Court cannot set aside the Tribunal’s decision and send the matter back unless it is satisfied that the Tribunal’s decision was affected by jurisdictional error.

4. The Court does not itself have power to decide whether the applicant meets the criteria for the visa under application.  I emphasise, in light of submissions that were made to me by the applicant, that the Court does not have a general power to dispense with the effects of the migration laws, nor to assess the conformity of those laws to general principles of human rights.  In short, the function of the Court is to consider whether the Tribunal has validly applied Australia’s migration laws when arriving at its decision. 

5. The circumstances of the applicant prior to her application for her spouse visa were summarised by the Tribunal in its decision.  In my view, this was an accurate description of the evidence before the Tribunal: 

   14.The visa applicant entered Australia on a Subclass 976 Electronic Travel Authority (Visitor) visa on 7 July 2000.  She was granted a Subclass 686 Tourist (Long Stay) visa on 8 March 2001 and a further Subclass 686 visa on 8 March 2001.  This last Subclass 686 visa ceased on 18 June 2001.  The application which is the subject of this review was made on 18 July 2002.  Since then the visa applicant has held a Bridging C visa.  The visa applicant’s son’s last substantive visa, a Subclass 976 visa, ceased on 7 October 2000.  He was granted a Bridging E visa on 18 July 2002 on the basis of the application for a visa which is the subject of this review. 

   15.Departmental records indicate that on 24 September 2001, compliance officers had executed a search warrant at a Bankstown unit.  The visa applicant’s son, 19 year old ‘adopted daughter’ and another Korean male were present.  The visa applicant’s daughter advised that the male was the visa applicant’s ‘boyfriend’ and the father of the visa applicant’s son.  The male departed Australia on 13 November 2001.  The visa applicant’s daughter provided the family’s passports to the officers, including the visa applicant’s passport.  The officers explained through an interpreter that the whole family were to attend the Department the next morning to collect their passports and discuss their immigration status and possibly apply for a Bridging E visa.  The visa applicant did not do this. 

   16.The visa applicant was nominated in connection with the visa application by Mr Woo Soon Kang (the nominator), an Australian citizen, who was born in Korea on 16 April 1940.  He acquired Australian Citizenship on 14 February 1986. 

   17.In a statutory declaration dated 30 July 2002, the visa applicant states that she was first introduced to the nominator by one of his church members at the Hurstville Catholic Club in April 2002.  Since then they met almost every day and got to know each other.  On 10 April 2002, he proposed marriage.  She accepted his proposal as she felt deep sympathy and love for him.  The nominator had been suffering from serious health problems and she was willing to provide care to him after she married him.  They had arranged a wedding for October 2002.  She was living at the same address as the nominator.  She relies on his pension money and money her brother sends her from Korea.  The visa applicant also provided documentary evidence to demonstrate that her relationship with the nominator was genuine. 

   18.In his statutory declaration of 30 July 2002, the nominator repeated this information.  He added that he had been looking for a female person who was fit and able to provide care to him as he had been suffering from serious health problems.  He found love and confidence in the visa applicant because she was truly sympathetic to his health condition and was willing to care for him after their marriage. 

   19.The visa applicant and the nominator married on 6 November 2002 in Sydney.  A copy of the marriage certificate is on file. 

   20.The visa applicant was previously married to a Mr Jung Rok Kim.  There is conflicting information as to when the visa applicant divorced her first husband.  The Family Register for the visa applicant and her family dated 9 December 2002, states that Mr Kim divorced the visa applicant on 19 November 2002.  The visa applicant claimed in a statement that she filed a divorce application in the Family Court of Korea and the court affirmed it on 18 October 2002.  An amended translated family register provided to the Tribunal states that the visa applicant’s divorce was confirmed at the Seoul Family Court on 18 October 2002.  On a notice of intended marriage dated 10 September 2002, the visa applicant states that she was divorced on 2 April 1997. 

   21.The nominator was previously married from 26 June 1967 until his divorce on 27 June 2000.  The nominator has four children from that marriage and all are residing in Australia.  The nominator then sponsored a Ms Sang Hak Lee as his spouse in an application lodged on 18 July 2000.  The sponsorship was withdrawn on 20 March 2001 and the application was refused on 20 March 2001.  The nominator divorced Ms Lee on 12 October 2001. 

   22.On 16 September 2002, the Department wrote to the visa applicant advising her of the requirement to provide compelling reasons for not applying schedule 3 criteria as her partner visa application was not lodged within 28 days of her substantive visa ceasing. In her response, the visa applicant claimed that she arrived in Australia on a 3 month tourist visa and she was able to extend her visa twice on 12 October 2000 and 8 March 2000 (sic: 2001). She could not extend her visa after 5 July 2002 due to difficult financial circumstances. She is a pastor and established a church in Korea in 1995. Her former husband embezelled church money. She was often physically and verbally attacked by him and had to visit hospital 3 times due to these domestic incidents. She decided to come to Australia to escape him. When she first met her husband, he was in bad health and could not walk 100 metres due to the side effects of a kidney transplant. He asked her to marry him and take care of his health. He is scheduled to have operations for glaucoma and cataract caused by diabetes.

   23.The visa applicant provided a letter from Dr Ke‑Hwan Kim, general practitioner, dated 6 December 2002 in relation to the nominator’s condition.  Dr Kim states that the nominator had a kidney transplant operation in 2000.  He has peripheral vascular disease which caused leg pain with walking.  He has glaucoma with poor eyesight in the left eye and reduced vision in the right eye.  He is under the care of a renal physician, a vascular surgeon and an eye specialist. 

6. The criteria to be satisfied at the time of application were set out in Sch.2, cl.820.211 of the Migration Regulations 1994 (Cth) (“the Regulations”).  Two requirements should be noted. 

7. Under cl.820.211(2)(a) one requirement was that: “the applicant is the spouse of a person who … is an Australian citizen … ”.  “Spouse” was defined in reg.1.15A(1)(b) to include persons who at the time of visa application were not married but were “in a de facto relationship, as described in subregulation (2)”.  It was a requirement in the regulation’s description of that relationship that the relationship had preceded the date of visa application by 12 months unless under 1.15A(2A)(b):  “the applicant can establish compelling and compassionate circumstances for the grant of the visa”. 

8. In the present case, the Minister’s delegate was not so satisfied, and provided that reason for refusing the visa application. However, the Tribunal did not follow that path of reasoning, but addressed a second requirement of cl.820.211(2). This is the requirement in paragraph (d) which provided:

   (d)in the case of an applicant who is not the holder of a substantive visa …

   (ii)the applicant satisfies Schedule 3 criteria 3001 … unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

9. Relevant to the present applicant’s circumstances, Sch.3 criteria 3001 required:

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). 

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: 

   …

   (c)if the applicant: 

   (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of: 

   (iii)the last day when the applicant held a substantive or criminal justice visa; or

   (iv)the day when the applicant last entered Australia unlawfully. 

10. It was undisputed on the evidence before the Tribunal that the applicant’s visa application was made after the 28 day period required by Sch.3 criteria 3001(1), since this period had elapsed after the expiry of the applicant’s last substantive visa in June 2001. Her application for a spouse visa was made on 18 July 2002.

11. The issue for the Tribunal, therefore, was whether it was “satisfied that there are compelling reasons for not applying [that] criteria”, i.e. the temporal limitation in relation to onshore spouse visa application. 

12. The Tribunal directed itself as to the meaning of the words of this provision in a manner which I shall refer to below, and addressed the circumstances which I have referred to above together with the evidence elaborating them which had been provided to the Tribunal in documentary form and by the applicant and her spouse who had attended a hearing before the Tribunal.  I need not elaborate the detail of their evidence here.  It is summarised in the Tribunal’s reasons. 

13. The Tribunal, in my view, accurately identified the legal issue for its decision as I have myself identified it above.  It referred to policy issued by the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”), which suggested that circumstances which the Minister considered would be compelling in the present context were either that there were Australian‑citizen children from the relationship, or the applicant and nominator were already in a long‑standing spouse relationship, which was “taken to be a relationship which has existed for at least two years”. 

14. The Tribunal noted that neither of these policy reasons could be found in the facts of the present case, and in my view was clearly correct in forming that view.  However, the Tribunal also correctly instructed itself that the Department policy, while properly a matter to have regard to, was not legally binding.  It said: 

    39.Nevertheless, the Tribunal’s consideration of ‘compelling reasons’ is not limited to these circumstances.  The Tribunal has considered the other claims put forward by the visa applicant. 

    In my view, the Tribunal made no jurisdictional error in relation to its reasoning concerning the use of Departmental policy.  

15. The Tribunal identified the claimed “compelling reasons” put forward by the visa applicant as two‑fold.  First, and most significantly these were based on the spouse’s health and his need for intensive care.  Secondly, it identified the applicant’s fears for her personal safety if she returned to Korea.  I think this was a correct analysis of the case which had been put forward by the applicant herself with the assistance of her migration agent. 

16. The Tribunal’s conclusion about the first matter was: 

    40.The visa applicant claims that the nominator’s health and his need for intensive care should be regarded as a compelling reason at the time of application. It is not in dispute that the nominator had had a kidney transplant operation due to chronic renal failure in January 2000. He also has glaucoma and cataracts. He has had one operation for cataracts and is waiting for further surgery. He also has diabetes, hypertension and peripheral vascular disease. These conditions are confirmed by Dr Kim in his reports. Nevertheless, the Tribunal is not satisfied that the nominator’s health is a compelling reason for not applying the Schedule 3 criteria at the time of application in July 2002 for the following reasons.

17. The Tribunal explained four reasons for its conclusion.  The first referred to the fact that the spouse’s medical conditions were all long‑term conditions which he had had for a number of years before he met the visa applicant.  The second was that his condition did not have a sudden onset or deterioration in July 2002, but at that time was actually improving subsequent to his kidney transplant.  The third reason was that the applicant and the nominator were living together for less than three months at the time of the visa application, and in the Tribunal’s opinion there was no compelling need for the applicant to have remained in Australia to lodge the visa application.  The fourth was that there was no evidence in the Tribunal’s opinion that the visa applicant was required to provide additional care to the nominator because of his medical condition that was “outside a normal husband and wife relationship”. 

18. In my view, these reasons put forward by the Tribunal were all capable of being regarded as relevant and rational grounds for explaining the assessment required by the Tribunal when considering whether there were “compelling reasons for not applying [the time limitation on on‑shore visa applications]”. 

19. I cannot conclude from its reasoning that the Tribunal has misunderstood the relevant law nor, in my view, does the Tribunal’s discussion of the meaning of the phrase “compelling reasons” indicate error of law.  In this respect, the Tribunal said: 

    11.The ‘Schedule 3’ criteria referred to in the paragraph above may be waived if there are ‘compelling reasons’.  The term ‘compelling’ is not defined in the legislation.  According to the Macquarie Dictionary, ‘compelling’ means ‘to force or drive, especially to a course of action’.  The expression ‘compelling reasons’ involves something in addition to the basic pre‑requisite criteria for the grant of a visa (Dunne).  In other words, the assessment of the relationship between an applicant and their nominator as genuine would not, in itself, be enough to establish compelling reasons. 

20. The Tribunal’s reference to Minister for Immigration & Multicultural Affairs v Dunne [1999] FCA 204, in my view, did not reveal error of law, although the point arising from that decision was really no more than the trite point that compelling reasons could not be found by reason merely of the satisfaction of another criteria in relation to the visa application.

21. As to the meaning of the term “compelling reason”, a recent Full Court case has accepted a construction by a Tribunal: 

    … construing “compelling circumstances” to mean circumstances which force or drive the decision‑maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion.  

    (See Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 at [21] departing from opinions of Moore J expressed at first instance. See also the opinion of Whitlam J in McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 at [10], and Crennan J in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FCA 211 at [53]).

22. In the light of these authorities, I can find no legal error in the present Tribunal’s appreciation of the meaning of “compelling reasons” which it has applied to the evidence before it. 

23. The Tribunal’s discussion of the second claim put forward by the applicant for satisfying or for establishing compelling reasons, similarly in my view, revealed no error of law.  The Tribunal said in relation to the applicant’s fears of return to Korea: 

    46.The Tribunal has considered the visa applicant’s other claims. The visa applicant stated that she initially did not return to Korea after her substantive visa ceased as she feared her ex‑husband. The Tribunal is not satisfied that this is a compelling reason for not applying the Schedule 3 criteria. Without corroborative evidence, the Tribunal is not satisfied that the visa applicant would have faced a serious threat to her personal safety if she had returned to Korea to lodge a visa application. If she was no longer living with her first husband and was no longer involved in church activities, any perceived threat may well have subsided by then. In addition, the Tribunal has concerns that the visa applicant was given an opportunity to regularise her immigration status after the Departmental field visit in September 2001 and she did not do so.

1. I explored with counsel for the Minister two possible concerns about errors of law by the Tribunal.  Firstly, where the Tribunal said: 

   36.As the visa applicant does not meet the Schedule 3 criteria which apply in this case, the Tribunal must consider whether, in accordance with subparagraph 820.211(2)(d)(ii), there are compelling reasons for not applying the Schedule 3 criteria. This requirement must be met at the time of application.  (my emphasis)

2. I was unsure whether the Tribunal’s suggestion that compelling reasons must have themselves existed at the time of application was correct. 

   
   

   It seems to me that the relevant provision could be construed as allowing them to have arisen at any time prior to decision if they had the quality of compelling the decision‑maker to lift the time of application requirement as to time of lodgement.  My own researches identified no relevant authority on that point, but counsel for the Minister suggested that there was authority to support the Tribunal decision but was unable to cite it.  

3. In the circumstances, I did not find it necessary to reserve judgment to research that point further, since in my view it is clear that, if the Tribunal made any error in this respect, it did not affect its conclusion materially.  This is because the claims which had been made by the applicant and which were addressed by the Tribunal all concerned the state of health of the nominator at the time of application and the applicant’s fears at that time.  It was not claimed that either of these circumstances had become more compelling subsequent to the visa application. 

4. The second concern I had was a statement by the Tribunal when explaining its third reason for not finding compelling reasons in the nominator’s state of health: 

   43.Thirdly, the visa applicant and the nominator were living together for less than 3 months at the time of the visa application. Before this the nominator was living on his own. His evidence was that he had lived on his own for a long time and was used to cooking and cleaning for himself. He has the assistance of church friends and neighbours, as confirmed by the oral evidence of Mr Sheikh and Mr Chun. He was under the care of various specialists for his conditions. Whilst the visa applicant’s emotional well-being may have improved after he started living with the visa applicant, he was managing most daily tasks on his own. In these circumstances, the Tribunal is satisfied that was no compelling need for the visa applicant to remain in Australia to lodge the visa application. A wish not to be separated from a partner and the uncertainty that would follow, are factors that would apply to many applicants in this situation. The waiver provision in the Regulations is clearly framed as an exception, which means that the intention is that it does not apply to the majority of cases.  (my emphasis)

5. I think the Tribunal would have made an error of law if it had decided the case upon a conclusion which compared the applicant’s circumstances with “the majority of cases”. I do not read the concept of compelling reasons as necessarily giving rise to such a comparison, and a proper appreciation of the provision, in my opinion, would make it inappropriate to conduct such a comparison as a necessary requirement of the Regulations. The situation is comparable to established authorities which have rejected a mathematical approach when considering exempting discretions based on “special circumstances” (see Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18] and cases cited there).

6. However, in the present case I do not consider the Tribunal has fallen into that error.  The discussion leading into its reference to “the majority of cases” shows a proper appreciation of relevant considerations arising from the nature of the compelling reasons power as an exempting discretion.  I think the Tribunal has done no more than address this relevant consideration, in its reasoning in this paragraph.  

7. For the above reasons, I have not been able to identify any legal error affecting the Tribunal’s decision. 

8. My above discussion has been without reference to the grounds raised by the applicant in her application for review filed in this Court.  This is a document of several pages and has been supplemented by a further document headed, “Statement Of Reasons Application For Review”.  Both of these documents are with the Court papers and I have read them closely.  However, I have not been able to identify in them any criticism of the Tribunal’s critical reasoning which appeared under the heading, “Findings and Reasons”.  I certainly am unable to identify in those documents a ground of jurisdictional error which the applicant has sought to argue.  I say that, without intending criticism of the applicant or those who have helped her, since the concept of jurisdictional error is a matter which lay people cannot be expected to understand. 

9. In her oral submissions to me, the applicant asked that the Court apply principles of human rights and give high value to considerations of family coherence.  She asked me to make orders which would prevent her family being separated, and which would protect her marriage and her happiness.  Unfortunately, as I have attempted to explain to her, those are considerations which I cannot give effect to in exercising my jurisdiction as a judge of this Court.  My powers are constrained by the need to find jurisdictional error affecting the Tribunal’s decision, and I have not found such an error. 

10. For the above reasons I must dismiss the application. 

    RECORDED  :  NOT TRANSCRIBED

11. I order the applicant to pay the respondent’s costs in the sum of $5000. 

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  20 June 2005