Liu v Minister for Immigration

[2018] FCCA 3421

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3421

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – applicant needed to satisfy but did not satisfy Criterion 3001 – he therefore needed to show compelling reasons to not apply Criterion 3001 – Administrative Appeals Tribunal was not satisfied there were compelling reasons not to apply Criterion 3001 – applicant asserts that Administrative Appeals Tribunal did not meaningfully consider material provided by him and made unfair assumptions and that he that he has medical conditions – none of the grounds establish jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5F, 30, 65, 424A
Migration Regulations 1994 (Cth)

Cases cited:

ARG15 v Minister for Immigration (2016) 250 FCR 109
Hossain v Minister for Immigration & Border Protection (2018) 359 ALR 1

Applicant: FUZHONG LIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2651 of 2017

Judgment of: Judge Dowdy

Hearing date: 1 February 2018

Date of Last Submission: 14 February 2018

Date Judgment Reserved: 15 February 2018

Delivered at: Sydney

Delivered on: 28 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms A. Lucchese

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 23 August 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2651 of 2017

FUZHONG LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of China aged 57 years, having been born on 30 May 1961.

2. By Application filed in this Court on 23 August 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 July 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 26 August 2016 refusing to grant to him a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

1. I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.

2. The Applicant arrived in Australia on 10 January 2009 on a Tourist (Subclass 676) visa (Tourist visa), which ceased on 10 April 2009. This was a substantive temporary visa (see the definition of substantive visa in s.5 of the Act and temporary visa in s.30(2)(a)) and the last substantive visa held by the Applicant.

3. On 20 February 2009 he lodged a Protection (Class XA) (Subclass 866) visa (Protection visa) application as a dependant applicant member of the family unit of his then wife who was the primary applicant for the Protection visa. That Protection visa application was refused by a Delegate of the Minister on 6 May 2009 and the Delegate’s refusal was affirmed by the Tribunal (then the Refugee Review Tribunal (RRT)) on 7 September 2009. An application for judicial review of the Tribunal’s decision was dismissed on 25 February 2010 by the Federal Magistrates’ Court, and on 25 March 2010 the Applicant became an unlawful non-citizen.

4. On 4 November 2010 the Applicant lodged a request for ministerial intervention which was declined by the Minister on 10 March 2011.

5. On 1 March 2013 he again became an unlawful non-citizen, but on 10 December 2013 he lodged the Partner visa application which was based on the Applicant being in a spousal relationship with an Australian citizen, Ms Wen Ying Zhou (the sponsor), whom he had married on 2 May 2013 in Sydney and who was the sponsor for his Partner visa application. The sponsor at the time of the Partner visa application was aged 52 years, having been born on 5 December 1961. The sponsor was of Chinese ethnicity and had become an Australian citizen in 1996.

Statutory Provisions Relevant to the Partner Visa Application

1. As at the time of application and also at time of decision, the Applicant had to satisfy and to continue to satisfy cl.820.211 of the Regulations. Relevantly, cl.820.211(1) and (2) provided as follows:

   820.211

   (1)     The applicant:

   (a)  is not the holder of a Subclass 771 (Transit) visa; and

   (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the spouse or de facto partner of a person who:

   (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)  the applicant is sponsored:

   (i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

   (ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

   (A)     has turned 18; and

   (B)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (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.

   (emphasis added)

2. Relevantly, the Applicant was required to prove that he was the spouse of the sponsor under s.5F of the Act, which provided as follows:

   5FSpouse

   (1)  For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

   (2)  For the purposes of subsection (1), persons are in a married relationship if:  

   (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and  

   (b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and  

   (c)  the relationship between them is genuine and continuing; and  

   (d)  they:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis.

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

1. Regulation 1.15A of the Regulations had been made for the purposes of s.5F(3) of the Act and required that the matters to be considered in determining whether or not the Applicant and the sponsor were the spouse of each other under s.5F, included:

   a)the financial aspects of the relationship;

   b)the nature of the household;

   c)the social aspects of the relationship; and

   d)the nature of the persons’ commitment to each other.

2. As noted in [4] above, the Applicant’s last substantive visa ceased on 10 April 2009 and this meant that he had to satisfy Criterion 3001(1) of Sch.3 to the Regulations, which relevantly required him to have made his application within 28 days of 10 April 2009, namely by 8 May 2009. However, he had made his Partner visa application on 10 December 2013, some 4 and a half years too late. Accordingly, it was necessary for him to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001(1): see cl.820.211(2)(d)(ii) above.

3. The criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.

4. Finally, cl.820.223(1)(a) required that at time of decision the Applicant meet Public Interest Criterion 4004 (PIC4004), which required that the Applicant did not have any outstanding debts to the Commonwealth, unless the Minister was satisfied that appropriate arrangements had been made for payment.

Decision of Delegate

1. Before the Delegate the Applicant relied on the following claims as constituting compelling reasons which meant that Criterion 3001 should be waived, namely:

   a)the Applicant and his sponsor had been in a long-term relationship;

   b)the sponsor relied on the Applicant for on-going care because she has been suffering from “elevated stress, depression and sleep issues since March 2013” and has had psychological treatment since April 2013 due to the prospect of being separated from the Applicant; and

   c)that if he returned to China the Applicant had strong fears that he would be harassed and persecuted by the Chinese Government.

2. In his Decision Record the Delegate noted that during his time in Australia the Applicant had been an unlawful non-citizen for a cumulative period of three years and 258 days. Further, the Delegate found that for the purposes of the Partner visa application the Applicant could only be assessed under subclause (2) of cl.820.211.

3. In the result the Delegate:

   a)was not satisfied that the Applicant was the spouse of the sponsor and therefore he did not meet the requirements of cl.820.211(2)(a); and

   b)found that the Applicant did not meet Criterion 3001 because the application for the Partner visa was not made within 28 days of 10 April 2009 when his last substantive visa ceased and there were no compelling reasons for not applying Criterion 3001.

4. Accordingly, the Delegate refused the application for the grant of a temporary Partner visa, which meant that under cl.801.221(1) the Applicant also did not meet the criteria for the grant of a permanent Partner visa.

5. I note that the Delegate recorded in his Decision Record that the Applicant had an outstanding debt to the Commonwealth of $7,265 in connection with the costs of the review application to the RRT and the Federal Magistrates’ Court proceeding both referred to in [5] above, but did not expressly find that the Applicant’s failure to satisfy PIC4004 was a ground for refusing the Partner visa application.

6. Because it is relevant to Ground 1 of the Application filed in this Court I further note that the Delegate considered two medical reports relating to the sponsor which had been provided by the Applicant as establishing compelling reasons.

7. The first medical report was from Dr Vanessa Chu, psychologist, dated 6 September 2013 (Dr Chu’s Report) which indicated that the sponsor had attended five psychology appointments from 12 April 2013 to 23 August 2013. Dr Chu’s Report recorded that the sponsor had reported that the primary cause of her ongoing depression and stress was continued uncertainty regarding the permanency of her relationship with the Applicant and stress caused by the prospect of being separated from the Applicant. The letter went on to note that the results of a Depression, Anxiety and Stress Scale assessment (DASS test) administered on 23 August 2013 indicated the sponsor had extremely severe levels of anxiety, severe levels of stress and moderate levels of depression.

8. The second medical report was that of Dr Betty Lew, psychologist, dated 24 July 2016 (Dr Lew’s Report) which indicated that the sponsor had been under her care since 7 June 2016 and presented with a long history of depression and anxiety and that the DASS test (which I infer referred to that administered on 23 August 2013 by Dr Chu) indicated a severe level of depression and stress and an extreme level of anxiety.

9. In the result, the Delegate was concerned that Dr Chu’s Report and Dr Lew’s Report did not detail their own opinion of the sponsor’s health issues or the diagnosis, prognosis, treatment plan or any measurable improvements since commencing therapy with either Dr Chu or Dr Lew and that while they may be considered compassionate, they did not satisfy the requirement of constituting a compelling reason to waive Criterion 3001.  

Tribunal Decision

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 14 September 2016 and gave to the Tribunal at the same time a copy of the Decision Record of the Delegate.

2. By a letter sent pursuant to s.424A of the Act dated 30 June 2017 to the Applicant’s migration agent (s.424A letter) the Tribunal gave particulars of information to the effect that the Applicant had a current debt in the sum of $7,265 to the Commonwealth and that no contact had been made with the Department of the Minister to discuss payment of that amount. The migration agent, by email of 14 July 2017, responded that he had instructions from the Applicant “that he would like to pay the debt by instalments and we have contacted DIBP for the invoices but are still waiting for DIBP response”.

3. The Applicant and the sponsor appeared before the Tribunal at a hearing on 26 July 2017 to give evidence and present arguments.

4. From [4] – [14] of its Decision Record the Tribunal recorded the Applicant’s visa history and the findings and reasoning of the Delegate in the decision under review.

5. At [16] the Tribunal recorded further written material and evidence provided by the Applicant’s migration agent to the Tribunal and from [19] – [34] it recorded the evidence given by the Applicant at the Tribunal hearing. Then from [35] – [41] it recorded the evidence given by the sponsor at the hearing and from [42] – [47] further evidence given by the Applicant at the hearing.

6. From [49] – [91] of its Decision Record the Tribunal then recorded its consideration of and findings on those claims.

7. The Tribunal recorded at [49] that it was going to proceed on the basis of accepting at face value the claimed spousal relationship between the Applicant and the sponsor and to proceed by way of a consideration of Criterion 3001.

8. At [54] of its Decision Record the Tribunal found that because the Applicant had not made his Partner visa application within 28 days of 10 April 2009 he did not satisfy Criterion 3001 and then from [55] – [86] recorded its findings as to whether there were compelling reasons for not applying Criterion 3001

9. In the result at [86] of its Decision Record the Tribunal recorded its finding that it was not satisfied that there were compelling reasons for not applying Criterion 3001 and found that accordingly the Applicant did not meet cl.820.211(2)(d)(ii).

10. Finally, from [88] – [91] the Tribunal recorded its finding in relation to whether or not the Applicant satisfied PIC4004 and concluded that he did not because he had an outstanding debt to the Commonwealth of $7,265 and that no appropriate arrangements had been made with the Minister for payment of that debt and accordingly the Applicant did not satisfy cl.820.223(1)(a).

11. Accordingly the Tribunal affirmed the decision of the Delegate not to grant a temporary Partner visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relies on the following verbatim Grounds:

   1.The second respondent has indicated in the decision letter in paragraph 30 that the time of psychology reports have been issued immediately prior to the application being filed, after the department had requested and before the tribunal. All the reports are signed by the professional specialists, the content of the reports are much more important than the times of the reports; the second respondent should take these into consideration.

   2. In paragraph 60, the second respondent has stated that: "there is no information which would indicate that applicant would not be able to reply upon the support of his family if he were required to return to China to file any offshore Partner visa application." The second respondent has unfairly made the assumption that the application will receive help in China which is might not be the fact.

   3. The applicant has been diagnosed from various medical conditions, the second respondent has ignored this fact that the applicant may not remember clearly about what had happened.

   4. The second respondent states in the paragraph 69 has made the question in relation to the reports, the reports are genuine and made by the creditable professionals.

   5. The first and second have bias to access the application.

Consideration

Ground 1

1. This Ground asserts that the Tribunal did not consider or did not meaningfully consider Dr Chu’s Report, Dr Lew’s Report or a third medical report which had been submitted to the Tribunal from Dr Wilson Wong, psychologist, dated 10 July 2017 (Dr Wong’s Report and collectively with Dr Chu’s Report and Dr Lew’s Report, the Medical Reports). Dr Wong’s Report indicated that the sponsor had presented with a history of depression for four to five years and that she worked at Woolworths but felt very tired after work. The sponsor reported to Dr Wong that she had suffered from a depressive mood for the last three to four years since her sister in the United States started suffering from a brain tumour and that:

   She had seen two psychologists before. The first one left. She had gone to another during her sister was struggling with her illness. She stopped for she was very busy and husband was sick in the hospital. She had not seen anybody since. 

2. Dr Wong’s Report further indicated that the sponsor had been prescribed medication but did not find any benefit from it and did not wish to continue with it and he expressed the view based on the DASS test that the sponsor suffered from moderate stress, severe anxiety and moderate depression. Dr Wong’s Report ended with a recommendation, as follows:

   Cognitive Behavioural Therapy for depression.

   Returning the couple to China, they would not be able to survive the cost of medical care and daily living. It will be very hard for her to find a job to support the family.

3. The Tribunal in its Decision Record considered in some detail the Applicant’s claim that the sponsor’s medical condition was a compelling reason for waiving Criterion 3001. There was reference to the Medical Reports in its Decision Record at [10], [29] – [30], [41] and more extensive consideration given to them at [68] – [76].

4. In the result, the Tribunal expressed its view at [76] of its Decision Record that it was “not satisfied that any psychological condition the sponsor may suffer from provides a compelling reason for not applying the Schedule 3 criteria”.

5. The most extensive consideration of the Medical Reports is from [68] – [76] of the Decision Record. In short, the Tribunal was of the view that:

   a)the Medical Reports appear to have been obtained to support the Applicant’s immigration outcome, and not due to any treatment requirement of the sponsor;

   b)there was no information in the Medical Reports which indicated “the sponsor was having any continuing treatment for any psychological condition apart from the need to obtain a report to support [the waiver of] the Schedule 3 criteria”. I note that there was evidence to support this finding in that there was an unaccounted period of two years and ten months between the sponsor’s last psychology appointment on 23 August 2013 with Dr Chu and the sponsor seeing Dr Lew on 7 June 2016 (see [69] and [70] of the Decision record of the Tribunal);

   c)the Medical Reports recorded uncritically the sponsor’s claims, which were in a  number of respects inconsistent with evidence before the Tribunal, as noted at [71] of its Decision Record;

   d)the only evidence of any medication prescribed for the sponsor as a result of a psychological condition was one prescription for Effexor on 26 March 2013, from which she had told Dr Wong that she did not receive any benefit;

   e)notwithstanding any claimed psychological condition, the sponsor had not been prevented from continuing to work at Woolworths at Thornleigh in the seafood and delicatessen department on a permanent part time three days per week and sometimes four days per week basis and to maintain and manage the financial affairs of the Applicant and herself (see [39] and [73] of the Decision Record);

   f)the Applicant displayed a complete lack of knowledge of any treatment the sponsor had received for any claimed psychological condition and did not know the names of any of the treating psychologists (see [29] – [30] and [74] – [75] of the Decision Record).

1. In my view, the Tribunal did meaningfully consider and have regard to the Medical Reports and gave its reasons for why it did not find them to be persuasive. In my view those reasons cannot be said to be illogical or irrational. Perhaps another decision-maker might have placed greater weight on the DASS test results. However, that is not enough to establish the “extreme” illogicality or irrationality that must be shown for a decision to be vitiated for jurisdictional error based on an illogical or irrational finding of fact or reason: ARG15 v Minister for Immigration (2016) 250 FCR 109 at 122 [45] – [47] per Griffiths, Perry and Bromwich JJ.

2. Accordingly, in my view Ground 1 is not made out.  

Ground 2

1. This Ground asserts that the Tribunal erred by reason of it having “…unfairly made the assumption that the applicant will receive help in China which might not be the fact”.

2. The onus is on the Applicant to establish jurisdictional error under this Ground. The Tribunal stated at [60] of its Decision Record that there was relevantly “no information” and accordingly it behoves the Applicant to establish affirmatively that there was in truth information before the Tribunal that he would not be able to rely upon the support or help of his family in China.

3. However, the Applicant has not pointed to any such evidence: see [22] of the Decision Record where there is no suggestion of familial problems or breakdown. At [60] the Tribunal was simply reasoning on a reasonable and common-sense basis that in the usual course of events the Applicant, upon return to China, would be able to rely upon the support of his mother, brother, sister and two daughters if need be. In the absence of any evidence being proffered by the Applicant that there had been some sort of breakdown in his relations with his family, the Tribunal was entitled to reason in this way and Ground 2 is not made out.  

Ground 3

1. By this Ground the Applicant asserts that the Tribunal erred by reason of its failure to consider that the Applicant “… has been diagnosed from various medical conditions…[and] may not remember clearly about what had happened”.

2. This appears to be a reference to the fact that in June 2016 the Applicant suffered an episode of encephalitis, or inflammation of the brain, and various medical reports relating to this episode were submitted to the Tribunal. It would appear that he suffered from some confusion and short term memory impairment and was admitted to St George Public Hospital on 25 June 2016, but that this impairment improved significantly and gradually during his stay in hospital and he was subsequently discharged home on 5 August 2016. At [19] of its Decision Record the Tribunal noted that the evidence of the Applicant at the hearing “was given in a very hesitant and evasive manner” and that in answer to many of the questions put by the Tribunal “he would respond by saying that he could not remember”.

3. However, the Tribunal considered his medical condition at [83] where it stated as follows:

   [83]The Tribunal has taken into account the fact that the applicant suffered a medical condition in June 2016 and that this may have affected his memory. As indicated above, during the hearing the applicant was unwilling to provide direct answers to questions put to him by the Tribunal, often claiming that he could not remember things. No report has been provided from any doctor or health professional which would indicate that the condition the applicant suffered in June 2016 would have meant that he was unaware of significant issues in his and his sponsor's life. The Tribunal is not satisfied that the medical condition the applicant suffered can provide adequate explanation as to his lack of knowledge of the many significant issues in the sponsor's life or the fact that he was unwilling to provide direct answers to questions put to him by the Tribunal.

4. Ground 3 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 4

1. This Ground does not constitute a meaningful assertion of jurisdictional error.

2. At [69] of its Decision Record the Tribunal did refer to the Medical Reports, and never found that they were not genuine documents as such or were not made by credible professionals.

3. However, the Tribunal was of the view that they did not reflect a condition of the sponsor which genuinely needed treatment, and this Ground appears merely to seek to argue with the Tribunal’s decision in this regard.

4. Further, I have already found in dealing with Ground 1 that the view taken by the Tribunal of the Medical Reports was legally reasonably open to it, and this Ground fails to establish jurisdictional error.

Ground 5

1. This Ground makes a completely generalised and unparticularised claim of bias against the Delegate and the Tribunal.

2. There is not a skerrick of evidence to the effect that either have pre-judged the Partner visa application and thus were guilty of actual bias, or that the respective decisions or anything to do with the way those decisions were reached could be impeached on the basis of apprehension of bias, and Ground 5 is not made out.

A Further Matter – A Separate and Independent Ground of Refusal of the Partner Visa Under PIC4004

1. There was a further, separate and alternative ground supporting the decision of the Tribunal not to grant to the Applicant a Partner visa, namely that he had not met PIC4004 and thus could not meet cl.820.223(1)(a): see generally Hossain v Minister for Immigration & Border Protection (2018) 359 ALR 1.

2. The Tribunal considered this issue from [88] – [92], as noted at [32] above.

3. The Tribunal had put the Applicant on notice of this issue by its s.424A letter. However, when raised by the Tribunal with the Applicant at the hearing, he “said he did not know anything about it until the day of the hearing” and “that he had done nothing about it because he left all financial matters to the sponsor”: see [32] of the Decision Record.

4. The Applicant led no evidence at the Tribunal hearing that he had entered into appropriate arrangements to pay the sum of $7,265 to the satisfaction of the Minister. The Tribunal made a finding that at the time of its decision the Applicant had an outstanding debt to the Commonwealth of $7,265 and that no appropriate arrangements had been made for payment of that debt.

5. Accordingly, the Tribunal was entitled to make the finding at [91] of its Decision Record that the Applicant did not meet PIC4004. There is no evidence that the Applicant sought any adjournment of the hearing before the Tribunal or that he asked the Tribunal to delay in delivering its decision so that he could pay the debt or make arrangements to pay the debt, satisfactory to the Minister.

6. At the hearing in this Court there was no suggestion by the Applicant that he had paid the debt or that he had entered into arrangements to pay the debt, but rather he said that “… if I were able to be granted to stay in here, I certainly would endeavour to pay off the debt if I am allowed to work – if I am able to work, I should say”.

Conclusion

1. In my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  28 November 2018