LAN v Minister for Immigration
[2018] FCCA 1170
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1170 |
| Catchwords: MIGRATION – Review of AAT decision to refuse grant of Partner (Temporary) (Class UK) visa under section 65 of Migration Act – Citizen of the Peoples Republic of China – whether future intended pregnancy able to constitute a compelling reason for not applying Schedule 3 criteria – time up to which facts are to be considered for purpose of determining whether reasons are compelling or not – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476(1) Migration Regulations 1994 rr.820.21(d)(ii), Sch.3 |
| Cases cited: Waensila v Minister for Immigration & Anor (2016) 241FCR 121 Singh v Minister for Immigration & Anor [2015] FCCA 1196 |
| Applicant: | YANG LAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 497 of 2016 |
| Judgment of: | Judge Egan |
| Hearing date: | 24 April 2018 |
| Date of Last Submission: | 24 April 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Gunn |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the Applicant pay the First Respondent’s costs to be fixed.
That the matter be listed for mention at 9.30am on 16 May 2018 to determine the question of costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 497 of 2016
| YANG LAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) dated 2 May 2016 which affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) Visa. Such application was filed on 31 May 2016 and was brought pursuant to section 476(1) of the Migration Act 1958 (“the Act”).
The Applicant was a citizen of the People’s Republic of China who arrived in Australia on 9 January 2008 on a Student (Class TU) (Subclass 573) Visa which expired on 9 February 2008. The Applicant was granted a further student visa which expired on 30 August 2013, following which he became an unlawful non-citizen. The Applicant was granted a Bridging Visa E on 25 September 2014.
The Applicant relies upon only two (2) of the twelve (12) grounds raised in the application for judicial review.
First Ground
The first such ground was Ground Two which reads as follows:
“The decision maker failed to afford procedural fairness specifically by not adjourning the hearing when the applicant, variously, did not follow the full meaning of proceedings, and did not use an interpreter.”
In support of that ground, the Applicant sought to rely upon an affidavit filed by him on 8 May 2016. In paragraphs 18 – 39 inclusive of that affidavit, the Applicant sought to advance an argument that the AAT member ought to have appreciated that the Applicant did not understand the nature of the proceedings being heard before them, and that the member ought to have realised that the Applicant “was speaking nonsense” (paragraph 24 of the affidavit). What is clear, though, is that the member, at the commencement of the proceedings before them, afforded procedural fairness to the Applicant by firstly ensuring that a properly qualified interpreter was present and sworn to interpret, and secondly, by ensuring that the Applicant well knew that he, at all times, could use the interpreter for the purpose of assisting him in presenting his case should he feel at any time that he was compromised in doing so by his speaking English.
Annexure YL2-4 to the Applicant’s said affidavit is a transcript of the AAT proceedings. Page 3 of the transcript deals almost entirely with the AAT member confirming with the Applicant that the proceeding could continue, at his election, either in English or by and through the assistance of the interpreter. Indeed, the Applicant commenced the dialogue concerning which language was to be used by him in conducting his case when he asked of the AAT member – “So which language I can speak in?” The member made it clear to the Applicant that he could conduct his case in any language he wished, and that he could confer with the interpreter for clarification of any point. After the AAT member had sought confirmation from the Applicant that he wished to proceed in English, seeking an assurance from the Applicant that he understood that if he wasn’t understanding the proceedings (or the interpreter), then he was to let the AAT member know, and after the Applicant assuring the member that he understood the options given to him about either proceeding to present his case, either through the interpreter or by his use of the English language, the AAT member proceeded with the hearing.
In all of the above circumstances, therefore, I am satisfied that the Applicant was afforded procedural fairness in the conduct of his application. Having been so satisfied, I decline to consider the contents of an affidavit filed earlier in the proceedings by the Applicant on 19 October 2017. That affidavit was sworn by the Applicant and purported to place before me the Applicant’s version as to what he intended to say at the hearing, rather than the actual evidence extracted from the transcript. As has been consistently held in another place, it is not the role of a Judge of the Federal Circuit Court of Australia hearing applications such as the present to conduct a merits review of the facts presented before the AAT. Accordingly, I would not have been assisted by the contents of paragraph 4 of such affidavit in any event, as such proposed evidence would have required me to undertake such a merits based review. I accordingly find that this ground of review is without merit.
Second Ground
The second ground relied upon by the Applicant is Ground Twelve and reads as follows:
“The decision maker made a decision that is not reasonable in all the circumstances according to Wednesbury Principles.”
In that regard, Regulation 820.211(d)(ii) of the Migration Regulations 1994 reads as follows:
“(d) in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B)satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
It is firstly important to note that it was not in dispute at the hearing before me that the Applicant in the present case did not have a substantive visa at the time of the lodgement of his application - CB115 [7].
In such circumstances as last referred to, the Applicant had to meet certain criteria in Schedule 3 to the Migration Regulations 1994 (the Regulations). The relevant criteria to be satisfied were 3001, 3003 and 3004 of the Regulations, unless the Minister was satisfied that there were compelling reasons for not applying those criteria – cl 820.211(2)(d)(ii) of the Regulations. In order to satisfy criterion 3001, the application for the visa must have been lodged within twenty-eight (28) days of the “relevant day” – in this case the relevant day was 27 September 2013. It was common ground at the hearing before me that the Applicant had failed to lodge his visa application on or before 27 September 2013. Counsel for the Applicant, therefore, submitted that the AAT member was in error in failing to find that in all of the circumstances there were “compelling reasons” as to why the abovementioned criteria ought not to be applied.
During the course of the hearing before the AAT, the Applicant variously claimed that:
a)He did not lodge the visa application earlier because he had not been in a de facto relationship with the Sponsor for 12 months and that there were financial issues – CB116 [14], [15].
b)He would not go back to China and leave the Sponsor alone in Australia – CB116 [14], [16].
c)The Sponsor fell pregnant in 2015 but had an abortion because she had chicken pox and/or because they were renting – CB117 [19], [20].
d)They purchased a home in October 2015 – CB117 [21].
e)If the Applicant was required to return to China the house and business would need to be sold – CB117 [24].
f)The Sponsor would go offshore with the Applicant if he were required to leave Australia but she did not like living in China and as accustomed to living in Australia – CB116 [16], 117 [25].
The AAT was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria (CB119 [31]) and, having addressed the above points, found as follows:
a)The fact that the Applicant and the Sponsor wished to stay together was not a compelling reason – CB118 [26].
b)There was no medical or other evidence to indicate that the Sponsor could not live on her own in Australia without the Applicant or that she would not be able to care for herself without the psychological, emotional and physical support of the Applicant – CB118 [28].
c)The AAT did not consider that any temporary separation would constitute a compelling reason – CB118 [29].
d)The AAT was not satisfied that the Sponsor would be required to travel to China and it did not accept that either the Applicant’s or the Sponsor’s perceived difficulties in returning to China constituted a compelling reason in circumstances where the Applicant had close relatives living in China and had travelled to China since coming to Australia – CB119 [30].
By reason of the above, the AAT found that the Applicant did not satisfy the criteria for the grant of a visa.
At the hearing before me, Counsel for the Applicant advanced a unique argument concerning what the AAT had overlooked as constituting a compelling reason – namely that the AAT had overlooked the likelihood of the Applicant and the Sponsor – in conformity with their stated intentions – having children together in the future, presumably where such children were to be born in Australia. The argument was advanced on the basis that a future intention to have children – expressed at a time immediately prior to the time at which the Minister (by the Minister’s delegate) made a decision, but which obviously had a prospective effect - was a fact which constituted both a relevant consideration and a compelling reason why the Minister ought to have exercised his discretion in favour of the Applicant. Counsel relied upon the text Jurisdictional Error in Australia by Aronson, Dyer and Groves for the proposition that a future pregnancy was a relevant consideration to be taken into account in certain circumstances.
Counsel for the Applicant also relied upon the case of Waensila v Minister for Immigration & Anor (2016) 241 FCR 121, a decision of the Full Court of the Federal Court of Australia. In that case, Robertson J, when referring to the time at which a compelling reason arose, said at 124 [18] as follows:
[18] “Further, if, as I accept, the purpose of the Minister’s discretion in cl 820.211(2)(d)(ii) is to give the Minister greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant, then to my mind it would be inconsistent with that purpose to limit the circumstances the Minister may take into account to circumstances existing at some past point. The immediate purpose of the discretion is to relieve the visa applicant from being required to satisfy at the time of application Schedule 3 criteria 3001, 3003 and 3004. I see no reason to limit the circumstances, whether they favour the visa applicant or not, to the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not, in my opinion, be given a construction which prevents the Minister, at the time of his decision, from taking into account in assessing “compelling reasons”, the circumstances which prevail at that time.”
From the above extract of His Honour’s judgment, it is clear that Robertson J found that when considering what constituted compelling reasons, the Minister was not limited to a consideration of the circumstances which existed prior to the time of the making of a decision when exercising his discretion. However, the underlined portion of the judgment (underlined by me) above suggests that His Honour was at least confining the timeline for consideration of such circumstances to the time up until the time of the making of the decision. I interpret His Honour’s reasons as limiting the facts able to constitute the basis for a finding that there were compelling reasons to those facts which were existing and established facts as at the time of the making of the decision. His Honour did not determine that the future intentions of an Applicant and Sponsor, whether reasonably based or not, ought to be included as facts to which the Minister ought to have regard when making a decision.
Griffths J at [53] - [58] said as follows:
[53]“Other considerations support this construction. First, the
waiver power is expressed in terms of whether “the Minister is satisfied that there are compelling reasons for not applying” the specified Sch 3 criteria (emphasis added). The occasion for considering whether or not to exercise the waiver power will arise when the Minister (or his or her delegate) comes to consider the exercise of the power under s 65 of the Act. On that occasion, the decision-maker will need to determine whether he or she is satisfied that the visa applicant meets (or, more accurately, “satisfies”) the specified Sch 3 criteria as at the time of the application. If the requisite satisfaction does not exist, the question will then arise whether or not the waiver power should be exercised in respect of any of those Sch 3 criteria. If the decision-maker is satisfied that compelling reasons exist for not requiring the partner visa applicant to satisfy the relevant Sch 3 criteria, the practical effect will be that the applicant will not be required to leave Australia and make a fresh application overseas for a visa.[54] The waiver power was obviously intended to be available to deal with cases where there were “compelling reasons” for not putting particular applicants to the hardship of having to leave Australia for that purpose. Given the nature of that power and the time when its possible application arises for consideration, clear words are required which would have the effect of confining that consideration to events which only existed at the time the visa application was made. Such a restriction would remove from consideration circumstances which occur after that date and constitute “compelling reasons” for not exposing some partner visa applicants to the hardship of leaving Australia and make a fresh application from overseas. I do not consider that the text of the relevant provisions contains such clear words.
[55] Secondly, the Minister did not contest that it was appropriate to have regard to the Explanatory Statement to the 1996 amendments in resolving the central issue of construction. As noted above, however, the Minister submitted that this material did not provide “clear support” for the appellant’s construction. I respectfully disagree.
[56] The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or “compelling reasons” post-date the time of application.
[57] The point is well illustrated by the appellant’s own circumstances. It took almost three and a quarter years for the delegate to determine his partner visa application. During that period, the appellant and his wife remained married and she became dependent upon him not only financially but also concerning her various health issues. It is difficult to understand the logic or policy for denying the decision-maker the right to take these matters into account in determining whether the appellant should be required to leave Australia and make an application for a different partner visa from overseas (the appellant did not dispute that if he were required to return to Thailand he could lodge an application there for a partner (Provisional) (Class UF) partner visa). Circumstances which constitute “compelling reasons” and give rise to hardship can arise at any time, including after the application is made. Clear words are required to prevent the Minister from taking such matters into account.
[58] Thirdly, the terms of criteria 3003 and 3004 support the appellant’s construction. They are set out, relevantly in [44]-[45] above. In the light of s 65 of the Act, the decision-maker’s “satisfaction” had to exist at the time he or she was determining whether or not to grant or refuse the visa. Nothing in the terms of either criteria 3003 or 3004 would exclude the decision-maker, in determining whether or not they were satisfied that the applicant met paragraph (d) of these criteria, from taking into account circumstances giving rise to “compelling reasons” for granting the visa which post-dated the making of the application. Although the concept of “compelling reasons” in paragraph (d) of those criteria arises in a different context from that in cl 820.221(2)(d)(ii), I consider that clearer words would be required than those which appeared in the relevant provisions to produce a result which confined the decision-maker, for the purposes of cl 820.221(2)(d)(ii), to consider only “compelling reasons” which existed as at the date of application, while at the same time permitting the decision-maker to take into account “compelling reasons” which emerged after the date of application for the purposes of paragraph (d) in criteria 3003 and 3004.”
The part of the judgment of Griffiths J (underlined by me) referred to in [53] above suggests that His Honour considered that any compelling reasons must “exist” at the time that the decision was to be made. There was no acceptance by His Honour of any proposition that facts or matters the subject of future possible factual scenarios, whether reasonably based or matters of mere conjecture, ought to be relevant considerations to be taken into account when the Minister determined whether any compelling reasons existed or not.
I am therefore not satisfied that an intended future pregnancy qualified as a compelling reason in the circumstances of this matter.
In any event, the AAT well appreciated its obligations when considering whether compelling reasons existed or not. [1]
[1] CB [12], [13]
The AAT addressed the question of whether the desire on the part of the Applicant and the Sponsor to remain together while the visa application was being considered constituted a compelling reason or not, referring to a recent judgment of Jarrett J in Singh v Minister for Immigration & Anor [2015] FCCA 1196 in that regard. [2]
[2] CB [26]
Additionally, the AAT considered whether a future desire to have a child constituted a relevant consideration, finding in such circumstances that such did not constitute a compelling reason. Questions of possible distress occasioned to Applicants and Sponsors during the application process was addressed, and the AAT found that the effects on the Sponsor of a temporary separation would not give rise to a compelling reason for not applying the Schedule 3 criteria. [3]
[3] CB [27], [28]
The AAT further addressed all of the Applicant’s claims when concluding that compelling reasons for not applying the Schedule 3 criteria did not exist. [4]
[4] CB [29], [30], [31]
I accordingly do not consider that the AAT fell into jurisdictional error when rejecting the application for the grant of the visa. Nor do I find that the decision of the AAT was unreasonable in the Wednesbury Principles context, or was otherwise a conclusion which lacked an evident and intelligible justification. [5]
[5] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel, and
Bell JJ
I dismiss the application for review.
I order that the Applicant pay the 1st Respondent’s costs of the application for review.
I will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 11 May 2018
Corrections
Changed hearing date and date of last submission from 23 April 2018 to 24 April 2018.
Changed delivery date from 2 May 2018 to the 11 May 2018.
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