LIU v Minister for Immigration - [2019] FCCA 1638

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1638

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Partner (Residence) (Class BS) Subclass 801 visa (801 visa) on the ground the applicant and sponsor were never in a spousal relationship – whether in considering whether to grant an 801 visa the Tribunal was bound to proceed on the basis that at the time the applicant had previously been granted a Partner (Temporary) (Class UK) Subclass 820 visa the applicant was in a spousal relationship – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 109, 116, 501
Migration Regulations 1994 (Cth), reg.1.15A(3)
Migration Regulations 1994 (Cth), Schedule 2, cl.801.221, 820.221

Applicant:

YUJIA LIU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 391 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

21 June 2018

Date of Last Submission:

21 June 2018

Delivered at:

Sydney

Delivered on:

14 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr L Karp & Mr G Schipp

Solicitors for the Applicant:

Australian United Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 391 of 2016

YUJIA LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application for judicial review relates to the decision of the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa (subclass 801 visa).
At the time the Tribunal affirmed the delegate’s decision the applicant held a Partner (Temporary) (Class UK) Subclass 820 visa (subclass 820 visa). One of the criteria the applicant had to satisfy to be granted a subclass 820 visa was that the applicant was the “spouse” of the “sponsor”. (I will explain these words later in these reasons.) The applicant submits that, having been granted a subclass 820 visa, she had satisfied the criterion of being the spouse of the sponsor; and that it was not, therefore, open to the Tribunal, when considering whether to grant a subclass 801 visa, to consider whether the applicant had ever been the spouse of the sponsor. The applicant further submits, however, that, contrary to what was open to it to do, the Tribunal determined the application by considering and answering adversely to the applicant the question whether the applicant was ever the spouse of the sponsor.
As I will discuss later, the resolution of this application for judicial review largely turns on the proper construction of 801.221(6) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as it applied when the applicant applied for the combined subclass 820 visa and…

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.

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Details

Case: [2019] FCCA 1638
Decision Date: 14 June 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Ms Liu against the Minister for Immigration. The dispute arose from the Administrative Appeals Tribunal's decision to affirm a delegate's refusal to grant Ms Liu a permanent partner visa (subclass 801). Ms Liu had previously been granted a temporary partner visa (subclass 820), which required her to be the spouse of an Australian citizen. The Tribunal's decision was challenged on the ground that it had exceeded its jurisdiction by determining that Ms Liu and her estranged husband were never in a spousal relationship as defined by the Migration Act 1958 (Cth).

The central legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had the power to revisit the question of whether Ms Liu and her sponsor had been in a genuine and continuing spousal relationship at the time of the grant of the subclass 820 visa. The applicant argued that the grant of the subclass 820 visa necessarily implied that this criterion had been satisfied, and that any reconsideration of this finding could only occur through specific visa cancellation provisions. The applicant contended that the Tribunal had focused solely on whether a spousal relationship existed within the meaning of section 5F of the Act, thereby asking itself the wrong question and failing to consider relevant claims, such as family violence.

The Court considered the competing submissions of the parties. The applicant argued that the Tribunal lacked the power to reconsider the spousal relationship for the subclass 801 visa application, as this had already been determined for the subclass 820 visa, and any such reconsideration would require a visa cancellation process. Conversely, the Minister submitted that the Tribunal was not bound by the delegate's previous findings and that a fair reading of the Tribunal's reasons indicated it had addressed the correct criteria for the subclass 801 visa, rather than revisiting the subclass 820 visa criteria. The Court framed the core question as whether the Tribunal failed to address the questions it was required to, or considered questions it ought not to have, when reviewing the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The application contains the following ground:The Second Respondent (the Tribunal) exceeded its jurisdiction by deciding the applicant’s visa application on the basis that the applicant and her estranged husband were never in a spousal relationship as defined in s.5F of the Migration Act.Particulars(a)The Tribunal when considering a visa application relying on the criteria in subclass 801 of Schedule 2 of the Migration Regulations is not lawfully able to revisit the question of whether the couple were in a genuine and continuing relationship at the time of the grant of the applicant’s visa which had been previously found to satisfy subclass 820. In his written submissions counsel for the applicant submitted that the Tribunal directed its attention to the question whether the applicant and sponsor had ever been in a spousal relationship as defined in s.5F of the Act, but the Tribunal did not have any power to consider that question. That is so, counsel submitted, because the applicant had already been granted a subclass 820 visa which necessarily implied that she had satisfied cl.820.211(2)(a) of Schedule 2 to the Regulations which, as I have already noted, required that the applicant is the “spouse” of a person who is an Australian citizen; and the only means by which that criterion could have been reconsidered is under provisions of the Act permitting the cancellation of a visa, such as s.109, s.116, and s.501 of the Act. Counsel for the applicant repeated the substance of these submissions in his oral address. He also submitted that, on the proper construction of its reasons, the Tribunal considered the question of whether to affirm the delegate’s decision solely through the prism of whether the applicant and sponsor were ever in a spousal relationship within the meaning of s.5F of the Act. Counsel further submitted that the fact the Tribunal concluded it was not necessary to consider the applicant’s claim that she was the victim of family violence supports the contention that it asked itself the wrong question. In his written submissions counsel for the Minister submitted the applicant has not explained the source of the Tribunal’s limitation to consider whether the applicant had satisfied the criterion contained in cl.820.211(2) of Schedule 2 to the Regulations. Counsel further submitted the Tribunal was not bound by any finding the delegate may have made when granting the subclass 820 visa. Counsel submitted that on a fair reading of its reasons, the Tribunal addressed the question whether the applicant satisfied cl.801.221(2) and cl.801.221(6) of Schedule 2 to the Regulations; it did not purport to revisit whether the applicant had satisfied the criteria provided for by cl.820.211(2) of Schedule 2 to the Regulations. The question that arises on the parties’ competing submissions is not whether the Tribunal had power to revisit whether the applicant had satisfied a criterion for the grant of the subclass 820 visa. It is almost self-evident that, when reviewing a decision of a delegate not to grant a particular class of visa, it is not open to the Tribunal to consider whether the applicant had satisfied the criteria of some other class of visa he or she had been granted unless there is an identifiable source of power for it to do so. The question that arises is whether the Tribunal failed to address the question or questions it was required to address, or whether it considered a question it ought not to have considered, when considering whether it should affirm the delegate’s decision not to grant the applicant a subclass 801 visa.