Li V MIAC - [2007] FCA 1098

FEDERAL COURT OF AUSTRALIA
Li v Minister for Immigration and Citizenship [2007] FCA 1098
IMMIGRATION – appeal from Federal Magistrates Court – refusal to grant appellant permanent spouse visa – no error in Tribunal decision
Li v Minister for Immigration and Citizenship [2007] FMCA 454 referred to
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 referred to
XIAO YING LI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
VID 456 OF 2007
KENNY J
3 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 456 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XIAO YING LI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

KENNY J

DATE OF ORDER:

3 AUGUST 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 456 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XIAO YING LI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

KENNY J

DATE:

3 AUGUST 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
BACKGROUND

This is an appeal from a judgment of the Federal Magistrates Court. The appellant unsuccessfully sought judicial review following the refusal of a permanent spouse visa.
The appellant, Xiao Ying Li, is a citizen of the People’s Republic of China. She married Mr Dinh Chuc Do, an Australian citizen, in China on 1 March 2001. On 6 March 2001, Ms Li lodged a combined visa application for a temporary and a permanent partner visa. On 8 February 2002, she was granted a temporary partner visa. She arrived in Australia on 23 March 2002.
On 29 October 2004, a delegate of the first respondent refused her application for a permanent spouse visa following an interview on 3 September 2004. The delegate stated:
“I am not satisfied that the Applicant and Sponsor have truthfully represented their meeting and decision to marry. I am not satisfied that the Applicant and Sponsor share important information to a level that would be expected in a genuine relationship. I am not satisfied that the Applicant and Sponsor currently reside together in a spousal relationship. I contend that this relationship has been contrived from the outset for the purposes of obtaining Permanent Residency for the Applicant, and that the Sponsor is assisting her for reasons unknown.”
Ms Li applied to the Migration Review Tribunal (‘the Tribunal’) for merits review of this decision. The Tribunal conducted a hearing on 14 November 2005 and, by letter dated 4 September 2006, notified Ms Li that it had decided to affirm the delegate’s decision. Ms Li applied to the Federal Magistrates Court for judicial review. The Federal Magistrates Court dismissed her application on 8…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Li V MIAC

Details

AGLC: Li V MIAC [2007] FCA 1098
Case: [2007] FCA 1098
Decision Date: 3 AUGUST 2007

CaseChat Overview and Summary

Li V MIAC is a case before the Federal Court of Australia involving a dispute over a visa application. The appellant, Li, sought to challenge the decision of the Migration Review Tribunal (MRT) which had upheld the refusal of her partner’s visa application under regulation 1.15A of the Migration Regulations. The central legal issues in this case revolved around whether the Tribunal had erred in its consideration of relevant evidence and the nature of the appellant’s relationship with her partner.

The primary contention was that the Tribunal failed to consider the persistence of the appellant and her partner in maintaining their visa application despite the indications that it would be refused, and the duration of their relationship at the time of the decision. The appellant argued that this persistence was an integral part of her claim for a genuine relationship under regulation 1.15A. The court examined whether the Tribunal had indeed overlooked these factors, which were pertinent to assessing the genuineness of the relationship.

The court concluded that there was no jurisdictional error on the part of the Tribunal. It was established that the Tribunal had considered the notes of the Departmental interview, including the discussions about the persistence of the application. The court held that the Tribunal was not required to explicitly mention or give specific weight to the persistence in its reasons, as the relevance and weight of such evidence were within the Tribunal's discretion. Furthermore, the court dismissed the argument regarding the conduct of the Departmental officers, which was not properly before the court.

In light of the above, the appeal was dismissed, and the appellant was ordered to pay the first respondent’s costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

For these reasons, I discern no error in her Honour’s determination that there is no relevant inconsistency and reg 1.15A is not invalid on this account. Relevant Considerations Argument The appellant also submits that the Tribunal failed to have regard to certain considerations that it was bound to take into account, namely:·the notes of the Departmental interview in September 2004, and in particular the fact that the appellant and the sponsor persisted with the visa application, after having been advised of the option of withdrawing the application or sponsorship; and ·the duration of the relationship at the time of the decision. The appellant contends that the first of these matters was relevant by virtue of reg 1.15A(1A)(b), especially 1.15A(1A)(b)(i) concerning the nature of the parties’ mutual commitment. The appellant argued that their persistence with their application was not just an item of evidence but an integer of the visa applicant’s claim. The Tribunal plainly had regard to the notes of the Departmental interview. In its reasons, it not only referred to the Departmental case file, it also discussed what the parties said at the interview. The appellant’s complaint is, in substance, that the Tribunal did not draw a particular conclusion from the Departmental notes of the interview. This was that the parties’ persistence, notwithstanding the difficulties in their way and the alternative offered them, demonstrated a commitment to one another of the relevant kind. This is in truth a complaint about the merits of the Tribunal’s decision and reasoning process. Such a complaint cannot support a finding of jurisdictional error on the Tribunal’s part. Further, I accept that, as the first respondent submitted, the absence of specific reference to persistence in the Tribunal’s reasons does not demonstrate a failure to take into account “all the circumstances of the relationship” for the purposes of reg 1.15A(3). The Tribunal was not obliged to mention the fact that the appellant and her sponsor chose to persist with the application even though the Departmental officers indicated that it would be refused. In the circumstances of the case, the relevance and weight of this matter were entirely for the Tribunal. I agree with the learned Federal Magistrate that:“[T]he Tribunal was not obliged to give weight to, or mention specifically in its reasons, the evidence about the applicant persisting with the application in the fact of the indications from the delegate that the application would be refused.”See Li v Minister for Immigration and Another [2007] FMCA 454 at [27]. At the hearing of the appeal, the appellant’s counsel sought to call into question the conduct of the Departmental officers. This was not raised by the notice of appeal. Nor was it raised in written submissions prior to the hearing. No such argument was advanced or supporting evidence adduced in the Federal Magistrates Court. Nor was the issue raised in the Tribunal. I would not entertain this argument on appeal.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 456 OF 2007

BETWEEN:	XIAO YING LI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:	KENNY J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 456 OF 2007