Ku v Minister for Immigration

[2018] FCCA 3066

FEDERAL CIRCUIT COURT OF AUSTRALIA

KU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3066

Catchwords:
MIGRATION – Partner visa application – review of decision of Administrative
Appeals Tribunal – whether Tribunal erred in failing to identify dispositive issue of review – where Tribunal found to have erred in addressing the wrong question – whether Tribunal erred in failing to consider claim – jurisdictional error established – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 5F, 425, 360

Migration Regulations 1994 (Cth), reg.1.09A, cls.820.211, 820.221, criteria 3001, 3003 and 3004 of sch.3

Cases cited:

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant: LI CHI KU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1517 of 2017

Judgment of: Judge Smith

Hearing date: 4 July 2018

Date of Last Submission: 4 July 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Alan Rigas Solicitors

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 19 April 2017.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 15 July 2016 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1517 of 2017

LI CHI KU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of Taiwan who, over the last 20 years, has spent much of his time in Australia.  He last arrived in Australia on 22 November 2013 and the last substantive visa the applicant held was a religious worker (subclass 401) visa which ceased on 4 August 2014.

3. On 5 August 2014 he applied for a Class UK Partner (Temporary) (subclass 820) visa and a Partner (Migration) (Class BS) (subclass 801) visa.  This application was made on the basis of the applicant’s relationship with his sponsor, Ms Jones, with whom he claimed to be in a de facto relationship.

4. There are three criteria relevant to the issues in these proceedings, the first two of which must be satisfied at the time of the application and the third which is to be satisfied at the time of decision.

5. The first relevant criterion is found in sub-cl.820.211(2)(a) of the Migration Regulations 1994 (Cth) which requires an applicant to be the spouse or de facto partner of a person who is an Australian citizen and to be sponsored by that person. It will be necessary in due course to consider the definition of de facto partner.

6. The second relevant criterion is sub-cl.820.211(2)(d)(ii).  That provision requires the applicant to satisfy the sch.3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criterion.

7. Criterion 3004 has a number of separate requirements including which relevantly require that the applicant did not hold a substantive visa “because of factors beyond the applicant’s control”, that “there are compelling reasons for granting the visa”, that “the applicant has complied substantially with…the conditions that apply or applied to...the last of any substantive visas held by the applicant…and...any subsequent bridging visa”, that “the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive…visa”, and that “the applicant intends to comply with any conditions subject to which the visa is granted”.

8. The third relevant criterion, which is to be satisfied at the time of the decision, is found in cl.820.221(1) of the Regulations:

   (1)     In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

   (a)     continues to meet the requirements of the applicable subclause; or

   ...

9. On 29 January 2016 an officer of the Department wrote to the applicant in connection with his visa application.  The officer noted that when the applicant lodged his partner visa application he was not the holder of a substantive visa because his visa had ceased on 4 August 2014.  The delegate noted that in those circumstances, and where an application was made within 28 days after the ceasing of the substantive visa, all of the criteria in 3004 of sch.3 to the Regulations had to be met. The delegate invited the applicant to respond to those matters as well as inviting him to provide further evidence as to his relationship with his sponsoring partner.

10. The only response to that invitation was an email of 18 February 2016 attaching a statement of account relating to a bank account in the name of the applicant and his sponsoring partner.  The account showed a recent deposit of $50 and a balance of $50.

11. On 15 July 2016 a delegate of the Minister made a decision to refuse to grant the applicant a visa.  The delegate’s decision was based upon the conclusion that the applicant did not satisfy sub-cl.820.211(2)(d)(ii).  The delegate found that the applicant did not meet criteria 3004 because he was not the holder of a substantive visa because of factors beyond his control and that there were no compelling reasons for granting the visa.  She also found that there were no compelling reasons for not applying the sch.3 criteria.  In doing so, the delegate noted that the applicant had been given an opportunity to submit information regarding compelling factors but had only provided the joint bank statement.  The delegate did not base her decision on a determination of whether or not the applicant and his spouse were in a de facto relationship.

12. The applicant applied to the Tribunal for review of the delegate’s decision. 

13. On 29 March 2017 the Tribunal invited the applicant to attend a hearing before it to take place on 18 April 2017.  In the invitation, the Tribunal wrote:

    ...

    One of the issues we will be considering at the hearing is whether you have complied with the timeframe requirements in Schedule 3 at the time you lodged your visa application and, if not, whether there are any compelling reasons for not applying these requirements.  Circumstances which constitute compelling reasons for not applying these requirements can arise at any time, including after the visa application was made.  We request that if you have any additional relevant material you wish to rely upon at the hearing you should provide it no later than 11 April 2017.

    ...

    (Emphasis in original)

14. On 11 April 2017 the applicant’s solicitors wrote to the Tribunal making submissions in support of the application for review.  The solicitors first addressed the circumstances in which the applicant came to lodge an application after the expiry of his last substantive visa:

    ...

    We are instructed that an application for a Partner Visa, Subclass 820/801 was taken by Mr. Ku to the Department of Immigration’s office in Sydney NSW on the 4 August 2014.  Unfortunately, he arrived too late in the day and the Case Officer he spoke with would not accept the application.

    This ill-timed misadventure resulted in Mr. Ku returning to the Department the next day, and proceeding to lodge a valid application, albeit, after the expiry of his 401 visa.  The late application resulted in Schedule 3 requirements being invoked.

    (Without alteration)

15. The solicitors then went on to address the waiver of the sch.3 criteria before stating[1]:

    [1] Exhibit A, page 160.

    Although the applicant applied for the Partner Visa within the 28 day period specified in 3001, we note that a failure to loge on-time does not, in itself, constitute, a factor beyond Mr. Ku’s control.  It is well established that a visa-holder is expected to know and understand visa expiry dates.

    In light of the above, as well as the lack of any other supporting evidence, Mr. Ku acknowledges that he is unlikely to meet the requirements of Schedule 3.  As such, we submit that there are compelling reasons – supported by evidence – which the Tribunal must now consider in relation to this application.

    (Emphasis and errors in original)

16. The solicitors then went on to address in further detail the reasons said to be compelling for waiving the sch.3 criteria.  First amongst these, was that Ms Jones was the sole carer of her elderly mother who had numerous health concerns including dementia and required constant monitoring.  Secondly, the solicitors referred to the health concerns of Ms Jones herself and her reliance on the applicant for support.

17. Next, the solicitors’ submission addressed the question of genuine relationship.  They wrote:

    Although the above Schedule 3 matter has formed the majority of this submissions, we note that additional evidence is attached here in support of the couple’s relationship and, indeed, sheds further light on the Schedule 3 and the need for Mr. Ku to remain in Australia.

    Included for the Member’s consideration are seven (7) Form 888’s, completed by work colleagues of the couple within the Church of Scientology, friends and neighbours. The Form 888’s of Ms. Horvatic, Mr. McHale, Ms. Byrne and Ms. Klaebe, all confirm that the de-facto relationship of Mr. Ku and Ms. Jones commenced approximately six (6) years ago.

    (Without alteration)

18. In conclusion the solicitors wrote that, when read together, the submissions and documentation would lead the Tribunal to better understand “the nature of the couple’s relationship and the compelling reasons for waiving Schedule 3 of the Regulations”.

19. Both the applicant and Ms Jones attended the hearing conducted by the Tribunal on 18 April 2017.  At the commencement of the hearing, the Tribunal summarised the matters that it considered were in issue before it.  It stated[2]:

    [2] Transcript page 2, lines 5-28.

    Because you don’t meet criteria 3004 I am required to consider whether there are any compelling reasons for grating this visa.  I am required to consider whether you were not the holder of a substantive visa due to factors beyond your control, or be satisfied that you’ve complied substantially with the conditions of your last substantive visa and any subsequent bridging visas that you have held.

    I will also consider all aspects of your relationship with the sponsor, including the social and financial aspects, the nature of your relationship, and the nature of your commitment to each other.  I will need to be satisfied that you and your partner were in a de facto relationship for 12 months prior to lodging the application.  I will need to be satisfied that the commitment – that you have a mutual commitment to a shared life together, to the exclusion of all others, that the relationship between you is genuine and continuing, and that you live together in a spousal relationship.

    So, those are the matters that we will be canvassing here today.  There can be one of two outcomes of the hearing.  The first is that I can agree with the Department and affirm this decision, the second is that I can find that you have met particular criteria and remit that back to the Department for them to consider the remainder.  D you have any questions before we begin?

    (Without alteration)

20. It will be necessary in due course to return to other aspects of the hearing.

21. On 19 April 2017 the Tribunal made a decision to affirm the decision of the delegate.

Tribunal’s decision

1. The Tribunal stated, at [22], that the issue before it was whether compelling circumstances exist to waive the sch.3 criteria “if, for reasons beyond the applicant’s control the applicant was prevented from regularising their status and lodging an application whilst not holding a substantive visa”.  As will be seen, however, the Tribunal addressed more than that issue.

2. The Tribunal first considered, and accepted that, the applicant satisfied criterion 3001: [27]. Next, it found that criterion 3003 did not apply to the applicant and so turned to criterion 3004. Criterion 3004, as submitted by the applicant, requires that each of a number of criteria be satisfied. Thus, it was open to the Tribunal to address, as it suggested it would in its statement of issues, only one of those criteria and, if it was not satisfied that was met, to turn to the question of whether the criteria should be waived under sub-cl.820.211(2)(d)(ii). The Tribunal did not take that course. Rather, it considered each of the criteria in criterion 3004.

3. First, it considered whether the applicant would have satisfied the criteria for the visa if he had lodged it on time (sub-cl.3004(f)(i)). In order to address this criterion the Tribunal first had regard to the definition of de facto relationship in s.5CB of the Migration Act 1958 (Cth) as well as the matters prescribed for consideration in reg.1.09A(3) of the Regulations. The Tribunal stated that it had considered all aspects of the parties’ relationship including the financial and social aspects and the nature of their household and their commitment to each other. It accepted, at [37], “that there may be some social recognition of their relationship” and stated “there is no corroborating evidence by close family members that the parties present themselves as a married couple to them or to others”.

4. The Tribunal accepted, at [38], that the applicant and sponsor may share accommodation but found that there was little meaningful evidence to support a finding that they were in a genuine, ongoing and exclusive spousal relationship as envisaged by the Act. Of particular concern to the Tribunal was the evidence concerning the parties’ financial affairs which it found to be vague and implausible: [45]. As a consequence it found that the parties had not been truthful about that matter.

5. The Tribunal accepted that the applicant may provide a level of assistance to the sponsor’s mother and to the sponsor herself and that they had lived together in the sponsor’s home; however it found that too much of the evidence was uncorroborated and lacking in relevant detail for the Tribunal to reach a level of satisfaction that their household arrangements were what would be expected from a couple living together “as husband and wife”.

6. At [53] the Tribunal stated:

   The Tribunal asked both parties why they had not married at any point in the past eight years and both said that they thought about it but did not proceed as there was no pressing need.  They claim that they were already living together and committed to a relationship with each other.  Both told the Tribunal that all their children were overseas and they were at a loss as to who they would otherwise invite to the wedding.  The Tribunal does not find this explanation particularly persuasive.

7. As will be seen, this paragraph is a focus of one of the grounds in the application. 

8. The Tribunal also expressed concern that the applicant had not earlier lodged a partner visa application ([54]) and had not declared in his previous visa applications that he had an Australian citizen de facto spouse ([57]). The Tribunal was not satisfied that, at the time of the application or at the time of the decision, the parties had a mutual commitment to a shared life together “as husband and wife” to the exclusion of all others: [59]. For that reason, it was not satisfied that the applicant met the requirements of sub-cl.820.211(2)(a) or cl.820.221. Accordingly, the Tribunal was not satisfied the applicant would have satisfied the criteria for the grant of a visa had he lodged his application within time.

9. The Tribunal then considered whether there were compelling reasons to grant the visa: see criterion 3004(d).

10. In this respect, the Tribunal considered the three matters referred to in the applicant’s solicitors’ submissions; namely the genuineness of the relationship, the assistance given by the sponsor to her frail mother and the sponsor’s own health concerns.  Once again, it will be necessary to return to the Tribunal’s particular findings in this respect later in these reasons.

11. The Tribunal next considered whether there were factors beyond the applicant’s control for not holding a substantive visa when he lodged his application: see criterion 3004(c). It found that the explanation given by the applicant was vague and unconvincing and was not satisfied that the circumstances in any event were beyond the control of the applicant. The Tribunal further noted that if the applicant had indeed considered himself in a genuine, ongoing and exclusive spousal relationship with the sponsor, he would have attended to the matter of making the application with greater haste and sense of purpose than he displayed and at the very least have made enquiries to see if he would be eligible for a reduced fee: [70].

12. Finally, the Tribunal considered the applicant’s compliance with previous visa conditions: see criterion 3004(e). Having regard to the fact that the applicant had been working for the Church of Scientology whilst holding a visa which was subject to a no work condition, the Tribunal was not satisfied the applicant had complied with his visa conditions during the entirety of the period he was on his bridging visa: [77]. Further, it was not satisfied that the applicant would not continue to work for the Church while he remained in Australia or that he would comply with any visa conditions in the future: [78].

13. As a consequence of those findings the Tribunal was not satisfied that the applicant met the 3004 criterion and so turned to consider whether there were compelling reasons for not applying those criteria.  Its reasoning was expressed concisely at [82] where it said:

    The Tribunal has considered the compelling reasons put forward by the parties in the context of granting the visa in paragraphs 56-59 above in the current context and finds that, for the same reasons, there are no compelling reasons to waive the Schedule 3 criteria.

14. For those reasons, the Tribunal was not satisfied the applicant met the criteria for the grant of the visa and so affirmed the decision of the delegate.

Consideration

First ground: failure to comply with s.360(1) of the Migration Act

1. The applicant contends that the Tribunal failed to comply with its obligation under s.360(1) of the Act. That provision requires the Tribunal to invite the applicant to give evidence and present arguments relating to the issues arising under review. The applicant’s argument is that the question of whether the applicant satisfied the definition of “de facto partner” in s.5CB of the Act was not sufficiently raised as an issue by the Tribunal.

2. The applicant relies on the fact that the delegate made no finding about the genuineness of the applicant’s relationship with Ms Jones and that, in his submissions, the applicant’s agent did not address that issue directly.

3. The leading authority on the obligation imposed by s.360(1) of the Act[3] is SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 in which the Court explained:

   [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.  That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision.  And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.

   [3] Although the decision concerned s.425(1) of the Act, that provision is in relevantly identical terms to s.360(1).

1. Here, as submitted by the applicant, the delegate did not address the question of the genuineness of the applicant’s relationship with his sponsor. However, that does not necessarily mean that that was not an issue that arose on the review or that the Tribunal necessarily had to identify that as an issue. If, for example, the applicant had convinced the Tribunal to come to a different view than the delegate about the existence of compelling reasons for not applying the sch.3 criteria (which was decisive of the delegate’s decision), the Tribunal would still have had to consider, separately, the genuineness of the applicant’s relationship.

2. The applicant’s agent understood that and made submissions addressed to that very issue. I do not accept that the agent made limited submissions about the issue because of the reasons of the delegate. His submissions were divided into several issues, identified by a heading. One heading was “Waiver of Schedule 3 Criteria” and another, separate heading was “Genuine Relationship”. This reveals that the agent was aware that this was an issue that arose in relation to the decision on review. That is important because it means that the applicant himself was aware of that issue and had the opportunity to present arguments and evidence about it at the hearing. Whether he did so or not, is not what matters.

3. In addition, and in any event, the Tribunal did make it clear at the commencement of the hearing that the genuineness of the relationship was an issue on the review. After summarising the delegate’s reasons for decision at the commencement of the hearing, the Tribunal explained what it was going to do. In other words, it explained to the applicant what it saw as the issues for determination and, thus, for submissions and evidence at the hearing. It said[4]:

   Because you don’t meet criteria 3004 I am required to consider whether there are any compelling reasons for granting this visa. I am required to consider whether you were not the holder of a substantive visa due to factors beyond your control, or be satisfied that you’ve complied substantially with the conditions of your last substantive visa and any subsequent bridging visas that you have held.

   I will also consider all aspects of your relationship with the sponsor, including the social and financial aspects, the nature of your relationship, and the nature of your commitment to each other. I will need to be satisfied that you and your partner were in a de facto relationship for 12 months prior to lodging the application. I will need to be satisfied that the commitment – that you have a mutual commitment to a shared life together, to the exclusion of all others, that the relationship between you is genuine and continuing, and that you live together in a spousal relationship.

   [4] Transcript p.2 lines 6-21.

4. The way in which the Tribunal explained the issue of the relationship reflected the requirements of the Act and Regulations concerning the existence of a de facto relationship for the purposes of the grant of visas.

5. In the terms explained in SZBEL, the Tribunal here identified the issue of genuineness. In that way, it complied with s.360(1) and the first ground is rejected.

Second ground: irrelevant consideration

1. The second ground is that the Tribunal erred by taking into account the fact that the applicant and his partner had not actually married and had not presented themselves as a married couple. The applicant relies on the following passages from the Tribunal’s reasons for decision:

   [37]  The Tribunal accepts that there may be some social recognition of their relationship by colleagues, but there is no corroborating evidence by close family members that the parties present themselves as a married couple to them or to others. …

   …

   [53]  The Tribunal asked both parties why they had not married at any point in the past eight years and both said that they thought about it but did not proceed as there was no pressing need. They claim that they were already living together and committed to a relationship with each other. Both told the Tribunal that all their children were overseas and they were at a loss as to who they would otherwise invite to the wedding. The Tribunal does not find this explanation particularly persuasive.

   …

   [56]  Alternatively, the parties could have married onshore. Neither of these things happened. It seems to the Tribunal that the applicant’s focus has almost entirely been on being able to return to Australia to work for the Church.

   …

   [58]  The Tribunal has considered this aspect of the parties’ relationship and is not satisfied that the applicant and the sponsor see themselves in a committed spousal relationship. The applicant did not declare the sponsor as his de-facto spouse in his visa applications and in the Tribunal’s mind, this is because he did not consider himself in a de-facto relationship at the time. Equally, he did not consider it necessary or desirable to apply for a partner visa prior to 2014 as he considered that he was, first and foremost, a religious worker, determined to continue working in Australia and not the de-facto spouse of an Australian citizen. Despite living together for 8 years they have not sought to marry.

2. I note that the Tribunal went on to summarise its conclusions in the following paragraph in a way that adds to the applicant’s argument:

   [59] Taken as a whole and having considered all the parties circumstances, the Tribunal is not satisfied that, at the time of application and at the time of this decision, the parties have or had a mutual commitment to a shared life together as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the parties’ relationship is genuine and continuing and the Tribunal is not satisfied that the parties live together in a spousal relationship envisaged by the Migration Act.

   (Without alteration)

3. The Minister argued that the question of whether the applicant had ever married his sponsor was not legally irrelevant and that, in any event, the Tribunal’s reference to that fact was only as part of its assessment of how the parties viewed their relationship. I disagree. The passages set out above show that the Tribunal thought that it was an important aspect of the parties’ relationship that they had not sought to be married and that they did not present themselves as a married couple. Its repeated reference to those matters were neither peripheral nor explicable by any looseness of language. It had that view prior to the hearing because it specifically asked the applicant and his sponsor about marriage.

4. The Tribunal’s view indicates that it has misunderstood the test to be applied. The question whether two people are in a genuine de facto relationship obviously has nothing to do with, and cannot be affected by their marital status, or indeed their intentions regarding, or attitude towards marriage. A person may be the “spouse” of his or her sponsor whether they are married or not. If there is no marriage recognised by the laws of Australia, the matters in s.5CB(2) must be satisfied. There is no mention there of marriage. If the parties are married, the matters in s.5F must be met, where there is a reference to marriage and, unsurprisingly, a mutual commitment to a shared life as “husband and wife”. The Tribunal’s approach ignored the dichotomy between those two definitional provisions and led the Tribunal to address the wrong question.

5. The second ground succeeds and the application must be allowed.

Third ground:  failure to consider claim

1. As the second ground succeeds, the third ground may be dealt with briefly.

2. In this ground the applicant contends that the Tribunal failed to consider each of the matters relied on by him to establish that there were compelling reasons for not applying the sch.3 criteria.

3. The applicant argued that there were three distinct matters relied on for this purpose: first, the support provided by the applicant to Ms Jones and her mother; secondly, the closeness and nature of their relationship; and thirdly, the fact that the applicant had not been in breach of any previous visa conditions. The contention was that the Tribunal did not deal with the third of these in deciding whether the sch.3 criteria should not be applied. The applicant accepted, correctly, that the Tribunal had referred to this issue in dealing with criterion 3004(d) (see [64] – [65]); however, that was a different issue, namely, whether there were compelling reasons for granting the visa.

4. The difficulty with this ground is what the Tribunal says at [82] in respect of the compelling reasons not to apply the sch.3 criteria. There it stated:

   [82]  The Tribunal has considered the compelling reasons put forward by the parties in the context of granting the visa in paragraphs 56–59 above in the current context and finds that, for the same reasons, there are no compelling reasons to waive the Schedule 3 criteria.

5. The reference to [56] – [59] here is wrong and must be a reference to [64] – [66]. It is in the latter paragraphs that the Tribunal deals with the question whether there are compelling reasons to grant the visa. Once that is understood, there is no question that the Tribunal did consider the argument that the applicant provided support to his sponsor and her mother and whether this constituted compelling reasons not to apply the sch.3 criteria. I do not accept that it was not open to apply the same reasoning to the same claim in respect of slightly different questions.

6. For those reasons, ground 3 is rejected.

Conclusion

1. The Tribunal fell into jurisdictional error in considering the fact that the applicant and his partner were not married. There will be writs of certiorari and mandamus addressed to the Tribunal to quash its decision and require it to complete the review of the delegate’s decision according to law.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         16 November 2018