Jiang v Minister for Immigration
[2016] FCCA 360
•25 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIANG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 360 |
| Catchwords: PRACTICE AND PROCEDURE – Judicial comity – previous decision of Court on same issue. STATUTORY INTERPRETATION – Use of language actually employed – text to be considered in context. WORDS AND PHRASES – “relevant permission” – “compelling circumstances”. |
| Legislation: Migration Act 1958 (Cth), ss.65(1), 476 Migration Regulations 1994 (Cth), reg.1.20J, Sch.2, cll.820.211, 820.221(4) (and Explanatory Statement) |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1; (2009) ATC 20-134 Alvaro v Legalwest Pty Ltd [2013] FCCA 1799 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; (2012) 87 ALJR 98; (2012) 84 ATR 1; (2012) 293 ALR 257; (2012) 91 ACSR 359; (2012) ATC 20-361 Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 275 FLR 273; (2013) 231 IR 198 Liu v Minister for Immigration & Border Protection [2015] FCA 1368 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 Wu v Minister for Immigration & Anor [2016] FCCA 290 |
| Applicant: | MIN JIANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 144 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 February 2016 |
| Date of Last Submission: | 19 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 25 February 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 144 of 2015
| MIN JIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ms Min Jiang (“Ms Jiang”), a Chinese citizen aged 38, is the fifth wife of Chun Keung Wu, aged 50, an Australia citizen since 1996, who is Ms Jiang’s sponsor (“Sponsor”) for entry into Australia on a Partner (Temporary) (Class UK) visa (“Temporary Partner Visa”).
On 13 April 2015 Ms Jiang filed an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal”). The Tribunal Decision affirmed an earlier decision by a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Ms Jiang a Temporary Partner Visa.
The Tribunal Decision appears in the Court Book (“CB”) at 246-253.
The relevant background is sufficiently set out for present purposes in the Tribunal Decision summarised below.
Statutory framework
Under s.65(1) of the Migration Act the Minister is to grant the visa applied for if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (“Migration Regulations”) have been satisfied.
The process of a person obtaining a permanent partner visa on the basis of a spouse or de facto partner being an Australian citizen involves a two-stage process:
a)the first step requires the person (in this case Ms Jiang) to obtain a Temporary Partner Visa (that being the visa the subject of this proceeding and the Tribunal Decision);
b)with respect to the Temporary Partner Visa application one of the criteria which needs to be satisfied is that the sponsor is a person who is approved by the Minister to provide sponsorship (which is the criteria in respect of which Ms Jiang failed in the present case); and
c)once the Temporary Partner Visa is obtained, the person is then able to seek to obtain a Partner (Residence) (Class BS) (subclass 801) visa.
The approval of sponsorship is subject to limitations contained in reg.1.20J of the Migration Regulations, which relevantly provided that:
(1AA) This regulation applies in relation to an application for:
…
(f) a Partner (Temporary) (Class UK) visa.
(1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:
(a) not more than 1 other person has been granted a relevant permission as:
(i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
(ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and
(b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)--not less than 5 years has passed since the date of making the application for that relevant permission; and
(c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination-not less than 5 years has passed since the date of making the application for that relevant permission.
(1A) In subregulation (1):
relevant permission means:
(a) in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive)--a visa; and
(b) in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997--permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.
(2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.
(3) Subject to subregulation (4), this regulation applies in relation to an application for a visa made on or after 1 November 1996.
(4) This regulation does not apply in relation to an application by a person who:
(a) was the holder of a Subclass 300 visa that was granted on the basis of an application for a Prospective Marriage (Temporary) (Class TO) visa that was made before 1 November 1996; and
(b) has applied for an extended Eligibility (Temporary) (Class TK) visa; and
(c) is seeking to remain permanently in Australia on the basis of the person's marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Prospective Marriage (Temporary) (Class TO) visa.
Clause 820.211(4) of Schedule 2 to the Migration Regulations provides that it is a criterion to be satisfied at the time of the Tribunal Decision that the sponsorship “has been approved by the Minister and is still in force”.
Tribunal Decision
Background
The factual and procedural background to the Tribunal Decision is as follows:
a)Ms Jiang lodged an application for a Temporary Partner Visa on 11 June 2013: CB 1-20, sponsored by the Sponsor, her husband, Chun Keung Wu: CB 21-30;
b)the Sponsor had previous marriages and had previously sponsored partners to come to Australia, as follows:
i)Michiko Minimida, the Sponsor’s first wife, who obtained permanent residence in May 1994 and was not sponsored as a partner: CB 79 and 240;
ii)Wu Ying Ying Kathy, the Sponsor’s second wife, who applied for, and was granted, a Spouse Combined (offshore) (UF309/BC100) visa (“Spouse Offshore Visa”): CB 76-77 and 240. The Spouse Offshore Visa application was lodged on 18 June 1996: CB 76;
iii)Liu Cui Ru, the Sponsor’s third wife, who applied for a Spouse (migrant) (applicant onshore) (BC 100) visa in April 2002: CB 81 and 240. Ms Ru however did not travel to Australia and the couple were divorced in April 2003; and
iv)Pan Xiu Min, the Sponsor’s fourth wife, who applied for, and was granted, a Spouse (Provisional) (offshore) (UF 309) visa as well as a Spouse (migrant) (applicant onshore) (BC 100) visa (“Spouse Onshore Visa”): CB 73, 75 and 240. The application for the Spouse Onshore Visa was lodged in September 2005: CB 240;
c)on 18 June 2014, the Delegate refused to grant Ms Jiang the Temporary Partner Visa: CB 197-213. The Delegate found that the Sponsor was subject to sponsorship limitations as a result of two previous sponsorship approvals, and accordingly, cl.820.211(2) of Schedule 2 to the Migration Regulations had not been met;
d)on 1 July 2014, the Tribunal received an application from Ms Jiang for review of the Delegate’s Decision: CB 214-215; and
e)on 30 January 2015 the Tribunal heard Ms Jiang’s application for review of the Delegate’s Decision (“Tribunal Hearing”).
Findings
The Tribunal Decision is dated 11 March 2015. The Tribunal:
a)found that the Sponsor was:
i)over 18 years of age;
ii)an Australian citizen;
iii)had sought to sponsor Ms Jiang; and
iv)accordingly, that cl.820.211(2)(c) of Schedule 2 to the Migration Regulations was met: CB 248 at [10];
b)in relation to whether sponsorships are counted for the purposes of reg.1.20J of the Migration Regulations said as follows:
20. In the Tribunal's view although the limitations in r.1.20J only apply where the current visa application was lodged on or after 1 November 1996, any previous sponsorships (even if they occurred before that time) may count towards the limit, depending on the date of the current visa application. This is due to amendments to this provision over time and the definition of 'relevant permission' in r.1.20J(1A). The Tribunal notes that prior to 1 September 1994, spouse and interdependency applicants in Australia were granted entry permits rather than visas.
21. For visa applications lodged from 1 January 1998 until the present (which includes this current application), all sponsorships that led to the grant of a visa or permit are counted whether permanent or temporary. Specifically, r.1.20J(1A)(b) states that in relation to an application for a Partner (Temporary) (Class UK) visa made on or after 1 July 1997 the term 'relevant permission' means: permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia; a visa; or an entry permit.
CB 249 at [20]-[21];
c)in relation to the Sponsor’s previous relationships the Tribunal found the Sponsor’s sponsorship of his:
i)first wife was excluded from reg.l.20J of the Migration Regulations as she was not sponsored as a partner, and the application that included her had been made before the relevant provisions of reg.1.20J of the Migration Regulations came into effect: CB 248 at [14];
ii)second wife was relevant for the purposes of reg.l.20J of the Migration Regulations as she was granted a relevant permission by way of a Spouse Offshore Visa or entry permit following his sponsorship of her: CB 249-250 at [22];
iii)third wife was not relevant as she was not granted a relevant permission for the purpose of reg.1.20J of the Migration Regulations as the relationship broke down: CB 250 at [23]; and
iv)fourth wife was relevant for the purposes of reg.1.20J of the Migration Regulations as she was granted a relevant permission by way of a Spouse Onshore Visa or an entry permit following his sponsorship of her: CB 250 at [24];
d)found that the Sponsor had previously sponsored two partners for entry to Australia, and therefore Ms Jiang did not meet the provisions of reg.1.20J of the Migration Regulations: CB 250 at [25];
e)found that it was not satisfied that the existence of a genuine relationship, or the sponsor’s health issues and impending surgery, constituted compelling circumstances such that the sponsorship could be approved: CB 250 at [28]-[29]; and
f)found that the requirements of cl.820.221(4) of Schedule 2 to the Migration Regulations had not been met: CB 250 at [30].
Affirmation of Delegate’s Decision
On 11 March 2015 the Tribunal affirmed the Delegate’s Decision to refuse to grant Ms Jiang the Partner Visa: CB 251 at [32].
Proceedings in this Court
The Judicial Review Application relies upon the following two grounds:
1.MRT misconstrued the effective date of regulation 1.20J(1)
2.MRT did consider the length of our relationship correctly as a compelling reason to waive reg 1.20J(1).
Although there were orders of a Registrar of this Court made on 5 August 2015 permitting Ms Jiang to file and serve any amended Judicial Review Application giving complete particulars of each ground of review, and any affidavit containing additional evidence (including any transcript of the Tribunal Hearing) by 16 September 2015, and written legal submissions 14 days before hearing, Ms Jiang did not file an amended Judicial Review Application, any further affidavits or any written legal submissions. Ms Jiang made oral submissions, albeit briefly, at the hearing, which were to the effect that:
a)although her husband had sponsored two previous wives, her solicitor’s advice was that reg.1.20J of the Migration Regulations did not preclude him from being her Sponsor; and
b)she and the Sponsor loved each other, had been in a genuine, long term and stable relationship since 2010, and had been trying to have a baby: Transcript, pages 2 and 7.
Consideration
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
The issue for the Court to determine is essentially one of statutory interpretation of reg.1.20J of the Migration Regulations.
In Wu v Minister for Immigration & Anor [2016] FCCA 290 at [8]-[11] per Judge Smith (“Wu”) (to which the Court referred the parties immediately prior to the hearing) this Court has recently dealt with the construction of reg.1.20J of the Migration Regulations as follows:
8. Mr Wu now seeks judicial review of the Tribunal’s decision. He relies on the same argument that failed before both the delegate and the Tribunal. In brief, his argument is that the term “relevant permission” had no meaning prior to 1 November 1996 and thus any sponsorship, visa or entry permit approved or made prior to 1 November 1996 are not “relevant permissions” and therefore not caught by reg.1.20J. That argument misunderstands the regulation.
9. Subregulation 1.20J(1A) defines the term “relevant permission” for the purposes of sub-reg.1.20J(1). That subregulation restricts the approval of sponsorships in respect of current applications by reference to past events. Those past events include the grant of a “relevant permission”. The definition in sub-reg.1.20J(1A) contains two parts depending on when “an application for a visa” is made. The words “an application for a visa” refer to the relevant current visa application in question. As the Tribunal noted, there is reference throughout reg.1.20J to “an application for a visa”. For example, sub-reg.1.20J(1AA) provides that the regulation applies “in relation to an application for” a number of classes of visa. Thus, the only sensible meaning of sub-reg.1.20J(1A) is that the periods referred to in paras.(a) and (b) qualify the application for a visa that it is currently under consideration. For that reason, the fact that Mr Wu’s first two wives were granted visas prior to 1 November 1996 did not mean that the regulation had no operation in respect of Mr Wu’s sponsorship of those wives. What mattered was that Ms Fu’s application had been made after 1 November 1996.
10. That conclusion is fortified by the history of the regulation. When it was first introduced, reg.1.20J prevented the Minister from approving a citizen’s sponsorship of a non-citizen’s visa application unless the Minister was satisfied that “not more than 1 other person has been granted a visa as the spouse…” (Emphasis added). However, prior to September 1994 a person was given permission to enter Australia by the grant of an entry permit rather than the grant of a visa. In light of that, the restriction in the original version of reg.1.20J did not apply to everyone who had arrived in Australia on a sponsorship from his or her spouse. The regulation was amended with effect from 1 July 1997 so that the restriction applied more broadly where there had been the grant of a visa or other permission such as entry permits. The fact that the definition of “relevant permission” has two components depending upon the time of application can be explained by the apparent desire not to make those later amendments retrospective.
11. For those reasons, on its proper construction, reg.1.20J was engaged by the grants of visas to Mr Wu’s first two wives and, subject to satisfaction of compelling circumstances, prevented the Minister from approving his sponsorship of Ms Fu in relation to her visa application. The Tribunal was correct to arrive at the same conclusion and this application must be dismissed.
Comity between judgments of this Court in similar cases is important, particularly where the same or similar matters have already been considered. If the facts or issues are the same, and have already been determined, this Court ought not to re-adjudicate an issue, unless there is additional relevant material brought to the attention of the Court, or unless the Court is of the view that an earlier judgment is clearly wrong: Alvaro v Legalwest Pty Ltd [2013] FCCA 1799 at [32] per Judge Lucev; Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 275 FLR 273; (2013) 231 IR 198 at [26(c)] and [60] per Lucev FM. There is nothing in the judgment in Wu which suggests to the Court as presently constituted that the judgment of the Court in Wu is plainly wrong. Indeed, and in any event, an examination of the relevant statutory provisions, both of their plain meaning and in their context, confirms the correctness of the judgment in Wu. Ordinarily, given the principles of judicial comity it might not be necessary to say more, but in deference to the helpful submissions made by the Minister’s Counsel in these proceedings, the Court deals with the statutory construction of reg.1.20J of the Migration Regulations in further detail below.
In order to interpret the language of reg.1.20J of the Migration Regulations it is relevant to consider the following:
a)regulation l.20J of the Migration Regulations was inserted into the Migration Regulations by the Migration Regulations (Amendment) 1996 No. 211 (Cth) (“1996 Amendments”). The Explanatory Statement explains that its purpose is to “limit the number of times a person may sponsor or nominate an applicant” for certain visa subclasses and to “curtail abuse of the spouse, fiancé and interdependency migration programs”;
b)that reg.1.20J of the Migration Regulations applies in relation to an application for a visa made on or after 1 November 1996: Migration Regulations, sub-reg.1.20J(3);
c)sub-regulation 1.20J(3) of the Migration Regulations as it applies to the current matter is in the same terms as when reg.1.20J of the Migration Regulations was introduced in 1996; and
d)the Explanatory Statement to the 1996 Amendments noted that the purpose of sub-reg.1.20J(3) of the Migration Regulations was that, subject to sub-reg.1.20J(4) of the Migration Regulations, “the limitation upon sponsorships or nominations is only to apply to applications for the relevant visas that are made on or after 1 November 1996”.
The statutory history of the 1996 Amendments therefore supports the following construction of reg.1.20J of the Migration Regulations:
a)that sub-reg.l.20J(3) of the Migration Regulations has the effect of limiting the application of reg.1.20J of the Migration Regulations, as a whole, to circumstances where the further or fresh visa application was lodged on or after 1 November 1996; and
b)the effect of sub-reg.1.20J(3) of the Migration Regulations in the circumstances does no more than limit reg.1.20J of the Migration Regulations from applying retrospectively to visa applications lodged prior to the 1996 Amendments commencing.
In order to interpret the language of reg.1.20J of the Migration Regulations it is also relevant to consider the following:
a)before 1 September 1994, spouse and interdependency applicants in Australia were granted entry permits rather than visas, with a single authority, the “visa”, replacing three previous authorities, the “visa”, the “entry permit” and the “entry visa” with effect from 1 September 1994, in order to simplify the legal basis for entry and stay in Australia: Explanatory Statement to the Migration Regulations;
b)sub-reg.1.20J(1) of the Migration Regulations provides that the Minister must not approve the sponsorship unless the Minister is satisfied that not more than one person has been granted a “relevant permission” as a spouse of the sponsor;
c)sub-reg.1.20J(1A) of the Migration Regulations operates to provide different definitions for what constitutes “relevant permission” depending upon when a visa application was lodged so:
i)for visa applications lodged between 1 November 1996 and 30 June 1997 “relevant permission” for the purpose of reg.l.20J of the Migration Regulations simply meant a visa; and
ii)for applications lodged after 1 July 1997 relevant “permission” included a visa or an entry permit,
and thus prior to 1 July 1997, reg.1.20J of the Migration Regulations had only applied to circumstances where multiple sponsorships or nominations lead to the grant of a “visa”; and
d)by the Migration Regulations (Amendment) 1997 No. 109 (Cth) (“1997 Amendments”) the term “relevant permission” was introduced into reg.1.20J of the Migration Regulations. The Explanatory Statement to the 1997 Amendments explains that is purpose is to “extend the limitation upon multiple sponsorships or nominations for a spouse, prospective spouse or interdependent partner visa to the sponsorship or nomination of persons who were previously granted either an entry permit or other type of permission as the spouse, prospective spouse or interdependent partner of their sponsor or nominator”.
Context has a useful but limited role to play in statutory interpretation. It has been observed that:
a)“The language which has actually been employed in the text of the legislation is the surest guide to legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1; (2009) ATC 20-134 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; and
b)“‘...the task of statutory construction must begin with a consideration of the [statutory] text.’ So must the task of statutory construction end. The statutory text must be considered in its context”: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; (2012) 87 ALJR 98; (2012) 84 ATR 1; (2012) 293 ALR 257; (2012) 91 ACSR 359; (2012) ATC 20-361 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ (footnote omitted).
In this case the context supports the construction of sub-reg.1.20J(3) of the Migration Regulations adopted by the Tribunal because:
a)the text of reg.1.20J of the Migration Regulations makes an important distinction in referring to an “application for a visa” and an “application for that relevant permission”. For example:
i)sub-regulation 1.20J(1AA) of the Migration Regulations states that reg.1.20J of the Migration Regulations applies to “an application for specific” classes of visas;
ii)sub-regulation 1.20J(1) of the Migration Regulations further makes reference to a person applying for a “visa” mentioned in sub-reg.1.20J(1AA) of the Migration Regulations;
iii)sub-regulation 1.20J(1)(a), (b) and (c) of the Migration Regulations variously make reference to the grant of a “relevant permission” and the “application for that relevant permission”;
b)a distinction must therefore be drawn between what constitutes an “application for relevant permission” and an “application for a visa” for the purpose of reg.1.20J of the Migration Regulations; and;
c)the text of sub-reg.1.20J(3) of the Migration Regulations states that it applies to “an application for a visa made on or after I November 1996”, and the reference to “an application for a visa” rather than an application for “relevant permission” indicates an express intention for sub-reg.1.20J(3) of the Migration Regulations to apply in circumstances where a visa application was lodged on or after 1 November 1996 rather than to indicate that it did not apply to an application for relevant permission prior to that date.
Applying the above construction of reg.1.20J, and particularly sub-reg.1.20J(3), of the Migration Regulations to the circumstances of this case means that:
a)regulation 1.20J of the Migration Regulations applied to Ms Jiang’s Temporary Partner Visa application, it having been lodged after 1 November 1996;
b)as Ms Jiang’s Temporary Partner Visa application was lodged after 1 July 1997 “relevant permission” extended to that application; and
c)the sponsorship of the Sponsor’s second and fourth wives constituted “relevant permission” for the purposes of sub-reg.1.20J(1) of the Migration Regulations, as they were both granted a “visa”.
It follows that the Tribunal was correct to conclude that the Sponsor had previously sponsored two partners for entry to Australia, and therefore Ms Jiang did not meet the provisions of reg.1.20J of the Migration Regulations and that the requirements of cl.820.221(4) of Schedule 2 to the Migration Regulations had not been met, and she could not therefore be granted a Temporary Partner Visa.
No error, jurisdictional or otherwise, is revealed by the Tribunal Decision in relation to ground 1. Ground 1 is, therefore, not made out.
Ground 2
Ms Jiang did not demur from the Minister’s Counsel’s submission that ground 2 was intended to read as follows:
2.MRT did not consider the length of our relationship correctly as a compelling reason to waive reg 1.20J(1).
(Emphasised word added).
The Court will treat ground 2 as having been amended accordingly. If it were to not be so amended it would not, in any event, be capable of giving rise to jurisdictional error on the part of the Tribunal.
The Federal Court has dealt with the issue of what makes reasons or circumstances “compelling” in MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510 (“MZYPZ”). Although the Federal Court was there dealing with criteria for a different type of visa, and although the Minister was there required to be satisfied that there were “compelling reasons for not applying” relevant criteria, the Federal Court dealt with what makes a reason or circumstance “compelling” as follows:
10 That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).
11 As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:
“Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment.”
12 In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
13 The decision-maker needs to be “satisfied” that compelling reasons exist.
MZYPZ at [10]-[13] per Bromberg J.
More recently, in Liu v Minister for Immigration & Border Protection [2015] FCA 1368 (“Liu”) the Federal Court having cited MZYPZ: Liu at [38] per Markovic J, went on to observe that in order for the relevant criteria to be waived:
… the decision-maker needs to be satisfied that compelling reasons exist. The circumstances must be “so powerful” that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria.
Liu at [39] per Markovic J.
In the Tribunal Decision the Tribunal dealt with the issue of “compelling circumstances” as follows:
12. The expression ‘compelling circumstances’ is not defined in the legislation. Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
CB 248 at [12].
It is plain, therefore, that the Tribunal had regard to the appropriate legal test when considering whether there were compelling circumstances warranting approval of the sponsorship. In that regard, there was no error, jurisdictional or otherwise.
The Court notes that there is no record of Ms Jiang making specific submissions to the Tribunal that the length of the relationship constituted a compelling circumstance affecting the sponsor. Rather, the evidence submitted by Ms Jiang subsequent to the issue of the limitation on the Sponsor’s capacity to sponsor her being raised by the Tribunal pointed primarily to the purported genuineness of the relationship. For example, Ms Jiang submitted various documents including:
a)bank statements and money transfers: CB 135-153 and 190-195;
b)phone records: CB 106-134 and 170-189;
c)correspondence: CB 93-105, 161 and 168;
d)photographs: CB 196;
e)personal statements of Ms Jiang and the Sponsor in relation to the relationship: CB 84-85 and 160;
f)a number of statutory declarations of friends and family members asserting that the relationship was genuine: CB 86-88 and 162-167; and
g)submissions that stated the Sponsor had now learnt to make marriage work and had recent medical issues: CB 241.
In any event, it is clear that the Tribunal did consider the length of the relationship between Ms Jiang and the Sponsor. The Tribunal set out that Ms Jiang and the Sponsor claimed to have lived together since Ms Jiang had come to Australia in March 2013, and accepted that they were married in June 2013 and had provided evidence to support the genuineness of the relationship: CB 250 at [28]. Ultimately, however, the Tribunal did not accept that the existence of the relationship alone constituted compelling circumstances to justify the warrant of a waiver of the bar on sponsorship. As the Tribunal observed:
… the existence of a genuine relationship does not constitute compelling circumstances that justify the warrant of a waiver of the bar on sponsorship in this situation. This is because a genuine relationship forms the basis of all partner visa applications.
CB 250 at [28].
For reasons set out above, it is apparent that the Tribunal understood the nature of the test to be applied in determining whether or not there were compelling circumstances. Ms Jiang now points to a number of factual matters as a basis for endeavouring to persuade this Court that there were compelling circumstances. The matters that she raises before this Court: see [13] above, are no more than the usual incidents of the life of one partner with another, and part of the test of a genuine relationship, and go solely to the merit of her application for a Temporary Partner Visa.
The Court has no jurisdiction to engage in merits review. Fact-finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7]per Kiefel, RD Nicholson and Downes JJ.
The Tribunal clearly identified the relevant issue, and applied the correct legal test, in determining whether there were compelling circumstances affecting the Sponsor. Nothing in the manner in which the Tribunal approached its task is indicative of there being any error, let alone jurisdictional error, in the Tribunal’s approach to its task.
It was for the Tribunal to identify the material it found relevant and give it appropriate weight. In that regard nothing in its fact-finding was outside of the remit of its jurisdiction.
No error, jurisdictional or otherwise, is revealed by the Tribunal Decision in relation to ground 2. Ground 2 is, therefore, not made out.
Conclusions and orders
The Court has concluded that:
a)the Tribunal’s construction of reg.1.20J of the Migration Regulations was correct, and the Sponsor was therefore precluded from sponsoring Ms Jiang for a Temporary Partner Visa, and the Tribunal was therefore also correct in affirming the Delegate’s Decision not to grant Ms Jiang a Temporary Partner Visa;
b)the Tribunal applied the correct test with respect to what constitutes compelling circumstances for the purposes of sub-reg.1.20J(2) of the Migration Regulations;
c)Ms Jiang now seeks impermissible merits review of the Tribunal’s conclusion that there were not compelling circumstances such as to warrant the approval of the sponsorship of Ms Jiang for the Temporary Partner Visa by the Sponsor; and
d)neither ground 1 nor ground 2 of the Judicial Review Application has been made out, and no jurisdictional error in the Tribunal Decision has been established.
Having regard to the above conclusions it follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 25 February 2016