LEE v Minister for Immigration

[2016] FCCA 1362

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1362

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal failed to take relevant considerations into account – whether the Tribunal erred in making adverse credibility findings against the applicant – bias – whether the Tribunal unreasonably refused to accept relevant evidence – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 359A, 359AA, 476.

Migration Regulations 1994, reg.2.03A.

Applicant: CHIEN-HAN LEE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3050 of 2015

Judgment of: Judge Street

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: T Galvin
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3050 of 2015

CHIEN-HAN LEE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision that the Tribunal made on 15 October 2015 affirming a decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa. The applicant is a national of Taiwan and applied for a student visa on 16 February 2015 as a member of a family unit of the primary applicant. On that application form it was identified that the applicant and the primary applicant were in a de facto relationship.

2. By letter dated 19 February 2015 an officer of the department wrote to the primary applicant and the applicant requesting evidence of their de facto relationship. An attachment to the letter identified the evidence that was required to substantiate the de facto relationship for at least 12 months. The primary applicant was granted a student visa on 27 March 2015. The Department received additional documents from the applicant and the primary applicant in relation to their relationship.  On 2 April 2015 a delegate of the Minister refused to grant the applicant a student visa.

3. The delegate found that there was insufficient evidence to demonstrate that the applicant had been in a de facto relationship with the primary applicant for a period of 12 months immediately preceding the date of the application.  The delegate identified that this was a requirement of reg.2.03A of the Migration Regulations 1994. The applicant then applied to the Tribunal for a review on 10 April 2015. The applicant received an invitation to appear before the Tribunal on 8 October 2015 and the applicant appeared on that date to give evidence and present arguments. 

4. The Tribunal also received oral evidence from the primary applicant and the hearing was conducted with the benefit of an interpreter and the applicant was also represented by this registered migration agent. The Tribunal accepted that the applicant and the primary applicant were in a relationship to which they were committed and the Tribunal accepted that there was some evidence that their relationship was in the form of a de facto relationship as defined by s.5CB of the Migration Act 1958.

5. However, the Tribunal was not satisfied that at the date of the visa application on 16 February 2016 the applicant and the primary applicant were in a de facto relationship in the required sense for a combination of reasons.  First, although there was some evidence of a financial commitment between the two, that evidence was very limited and a joint bank account had only recently been set up.  Secondly, the applicant did not know what the primary applicant was studying when asked by the Tribunal at the hearing.

6. Thirdly, the applicant described the relationship as one of boyfriend and girlfriend, which the Tribunal stated was indicative of how the applicant viewed the relationship and the Tribunal did not accept that they considered themselves to be in a de facto relationship.  The Tribunal also found that the evidence of the applicant and the primary applicant as to their future plans for life together was very limited. 

7. On 17 December 2015 a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions.  No such documents were put on.

8. The application identifies the following matters as being grounds of the application:

   Orders sought by Applicant

   1, I am a citizen of Taiwan. I have been in a genuine and continuing de fact relationship with my partner Shin-Ing Tsai who is currently holding subclass 572visa..my application for subclass 572 as a member of the family unit was refused by DIBP and AAT.

   2, My partner and I have been living together for more than 12 months and shared our commitment with each other. We have been financially supported each other. Our relationship has been witnessed by the public and friends.

   3, I cannot live without my partner. We shall never apart from each other. AAT should grant my application for subclass 572.

   The Grounds of the Application are:

   1, I disagree with Immigration and AAT's decision as I believe that our de facto relation have been genuine and lasting. AAT member has not comprehensively and fairly considered my review application and supporting evidence. The member has strong prejudice to my case which is totally unaccepted.

   2, AAT did not give a good and responsible consideration to my explanation at the hearing and evidence submitted to AAT.

   3, AAT member did not show any of her concerns or query to my explanations at the hearing, I don't think I have been fairly treated in the hearing.

9. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. 

10. The Court said that in summary this meant the Court was determining whether the Tribunal’s decision had been made lawfully and whether the Tribunal’s decision had been made fairly.  The Court explained that if satisfied that the decision was affected by a relevant legal error the Tribunal’s decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied that the Tribunal’s decision was affected by legal error the application would be dismissed.  The Court explained to the applicant that it proposed to identify the evidence and then hear submissions from the applicant and provided the applicant put submissions, then hear submissions from the solicitor for the first respondent and hear submissions from the applicant in reply.

11. When invited to put submissions by the Court the applicant chose not to put any oral submissions.  I accept the first respondent’s submissions that grounds 1 to 3 under the heading “Orders Sought by the Applicant” do not identify any error by the Tribunal.  I accept the submission that those paragraphs, in substance, re-state the applicant’s claims and his assertion that he should have been granted a student visa.  This Court does not have jurisdiction to make fresh findings of fact in relation to the applicant’s application.

12. Paragraphs 1 to 3, in substance, invite an impermissible merits review by the Court of the Tribunal’s decision.  The adverse findings by the Tribunal in relation to the applicant’s application were open to the Tribunal and the Court is satisfied that the applicant had a genuine hearing.  Nothing in paras.1 to 3 of the orders sought by the applicant identify any jurisdictional error.  In relation to ground 1 under the heading “The Grounds of the Application are”, I accept the first respondent’s submission that the Court does not have power to make fresh findings in relation to the applicant’s application.

13. On the face of the Tribunal’s decision, the Tribunal engaged in an orthodox assessment as to whether a de facto relationship existed at the time of the relationship.  It is clear from the Tribunal’s decision that the Tribunal properly identified the applicant’s claims and evidence.  Insofar as ground 1 seeks to invite a review of the application, this Court does not have power to make a fresh determination and it is clear that the Tribunal did evaluate the applicant’s claims and evidence in relation to the application.

14. To the extent that it is suggested that the Tribunal member had a strong prejudice against the applicant, there is no conduct or grounds that identify the basis for that assertion.  Any allegation of bias must be clearly made and properly proven.  No case of bias is made out. The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Ground 1 of the grounds of the application, para.1 under the heading “The Grounds of the Application are” fails to make out any jurisdictional error. 

15. In relation to ground 2, it was a matter for the Tribunal to determine what evidence it accepted.  The adverse findings by the Tribunal for the reasons given were open and nothing in para.2 of the grounds of the application makes out any jurisdictional error.  In relation to ground 3 under the heading “The Grounds of the Application are”, I accept the first respondent’s submission that the Tribunal’s decision clearly indicates that the Tribunal asked the applicant questions about the aspects of his relationship with the primary applicant.

16. It was those aspects of the relationship that the Tribunal primarily relied on in affirming the decision under review. I also accept the submission that the Tribunal’s subjective appraisals and processes and thought processes in respect to the determination do not constitute information that enlivened any obligation under ss.359A or 359AA of the Migration Act 1958.  It is clear that the applicant had a proper opportunity to address the dispositive issues raised with the Tribunal with the applicant.

17. To the extent that ground 3 of the application suggests that the applicant has not been fairly treated, there is no evidence before the Court that establishes any non-compliance by the Tribunal with its statutory requirements and the Court is not satisfied that the applicant was subject to any denial of procedural fairness in the conduct of the hearing and the determination by the Tribunal.  Paragraph 3 of The Grounds of the Application fails to make out any jurisdictional error.

18. To the extent relevant, the Court accepts that on a proper reading of the Tribunal’s decision without a keen eye for error it is apparent that there was a typographical error in para.23 and that the Tribunal made a finding that the applicant did not meet the definition of a de facto relationship in s.5CB. The applicant said nothing that could give rise to any basis upon which the Court could find any jurisdictional error.

19. The application is dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 June 2016