Liu v Minister for Immigration

[2015] FCCA 1977

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1977

Catchwords:
MIGRATION – Partner (Temporary) (Class UK Subclass 820) visa – review of decision of Migration Review Tribunal – failure to meet criterion – whether criterion should have been waived on the basis that another criterion had been waived previously on the basis of compelling reasons – whether the Court has the power to inquire – extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.41

Migration Regulations 1994 (Cth) reg.2.05(4), cl.820 of sch.2, cl.3001 of sch.3

Applicant: JUN GUO LIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 390 of 2015

Judgment of: Judge Smith

Hearing date: 1 July 2015

Date of Last Submission: 1 July 2015

Delivered at: Sydney

Delivered on: 1 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr L. Dennis, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 390 of 2015

JUN GUO LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant arrived in Australia a long time ago on a business visa and overstayed that visa. He then made a number of efforts to regularise his stay in Australia by applying for other types of visas, ultimately applying for a temporary partner visa in 2012. The second respondent (“Tribunal”) affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant that visa and it is the Tribunal’s decision that is the subject of these proceedings. 

2. It is necessary in order to understand its decision to give a brief outline of the facts as well as the relevant criteria. 

Background

1. The applicant arrived in Australia on 13 December 2003 on a Business (Short Stay) visa. It had attached to it condition 8503, the effect of which was that he was not entitled to any further stay in Australia. That visa ceased on 13 January 2004 and the applicant remained unlawful in Australia until he lodged a Protection visa application on 5 February 2004. A bridging visa was granted to him associated with that application but the application was refused on 13 February 2004. 

2. The applicant lodged a succession of visa applications with the Department, none of which resulted in a further substantive visa being granted. In December of 2009, the applicant met a woman who was a citizen of Australia and claims to have formed a committed relationship with her by the end of 2011 and eventually married her in February of 2012. On 27 July 2012, the applicant applied to the Minister to have the condition 8503 waived. There was a decision made by the Minister or a delegate on 13 August 2012 waiving that condition and thus allowing the applicant to apply for a further substantive visa. 

3. On 14 September 2012, the applicant applied for a Partner (Temporary) (Class UK Subclass 820) visa. He was sponsored in that application by his wife, the Australian citizen. However, in April of 2013, his wife withdrew her sponsorship. In response to that, the applicant claimed that he had suffered domestic violence of various forms at the hands of his wife. It is not necessary to set out in any detail the bases of those claims. However, it is relevant to note that the claims were not supported in any way by statutory declarations of psychologists or a psychiatric or by any Court determination of domestic or family violence. 

4. On 18 November 2013, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The basis of that decision was that the applicant had not applied for the Partner visa within 28 days of his last substantive visa having ceased. That is, that the applicant had not satisfied the criterion in sub-cl.820.21(d) of sch.2 to the Migration Regulations 1994 (Cth). In arriving at that decision, the delegate found that there were not compelling reasons for not applying that criterion. The applicant then applied to the Tribunal for review of that decision and was in that review process represented by a firm of solicitors and migration agents. 

5. In submissions dated 8 January 2015, the applicant’s agents addressed the question of whether there were compelling reasons for not applying the criteria upon which the delegate had based his decision. However, at the end of the submissions, the agent frankly conceded that the application could not be approved and that the Tribunal must therefore affirm the decision to refuse the visa.  Shortly afterwards, on 14 January 2015, the applicant attended a hearing before the Tribunal. In the afternoon of that same day, the applicant’s agent made a further submission to the Tribunal and stated:

   I was advised by the client this morning after the hearing that he had successfully sought a waiver of condition 8503 by reason of his wife’s medical condition. 

6. This information may be relevant in terms of the criterion 3001 but it is conceded that, in any event, the breakdown of the relationship precludes the grant of a visa in the current case. That submission was accompanied by a number of documents, including the letter from the Department of Immigration concerning the waiver of the condition 8503. Other documents included medical records relating to the conditions suffered by the applicant’s wife and a number of statements from the applicant, his wife and the wife’s daughter. 

7. The Tribunal made its decision on 29 January 2015 affirming the decision of the delegate.  In that decision, the Tribunal found that the applicant’s last substantive visa had ceased on 13 January 2004 and that he had therefore ceased to hold a substantive visa more than 28 days prior to the lodgement of the visa application and so did not satisfy criterion 3001.  He then turned to consider whether there were compelling reasons for not applying that criterion.  After briefly addressing the law concerning what constitutes compelling reasons, it set about analysing the information before it, including the medical information and the statements to which I have referred above.  Although it did not expressly refer to the decision to waive condition 8503, which accompanied the submission of 14 January 2015, it said at [28]:

   The Tribunal has considered all the evidence, including that in the Department and Tribunal files, the pre- and post-Tribunal hearing submissions and that evidence at the Tribunal hearing.

8. It then stated at its conclusion that it was not satisfied that there were compelling reasons for not applying the sch.3 criteria and accordingly the applicant did not meet sub-cl.820.221(2)(d)(ii).  For that reason, it affirmed the decision of the delegate. 

Consideration

1. There are essentially two grounds raised by the applicant in support of his application. The first ground after setting out a brief history says:

   I have successfully waived by 8503 criteria, which means that I have compelling reasons to wave those criteria.  Therefore the decision made by RRT is not fair to me. 

2. The second ground is essentially that the applicant has suffered domestic violence at the hands of his wife and is repetitious of the matters relied upon by the applicant before the delegate. The second ground can be dealt with briefly. The matters concerning domestic violence are matters that go to whether or not the applicant met the criteria for the grant of the visa. That, however, was not a question for the Court to decide; that was a question for the delegate at first instance and the Tribunal on review. 

3. This Court does not have power to inquire into whether or not the applicant in fact suffered domestic violence and so the allegation in ground 2 could not possibly support any of the relief sought by the applicant. It is rejected. 

4. In order to properly understand the potential impact of the first ground, it is necessary to consider briefly the criteria in 8503 and the decision to waive it. Section 41(1) of the Migration Act1958 provides that:

   The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

5. Without limiting that provision, the Regulations may also provide that a visa, or visas of a specified class, are subject to sub-s.41(2)(a) which states:

   a condition that, despite anything else in this Act, the holder the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia…

6. The Minister, however, may, in prescribed circumstances waive a condition of the kind just mentioned: see s.41(2A).

7. The prescribed conditions referred to in that section are set out in reg.2.05(4) of the Regulations. That provides that one of the circumstances is that since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed over which the person has no control or had no control and that resulted in a major change to the person’s circumstances. As previously noted, it was that power that was exercised by the Minister on 13 August 2012, which enabled the applicant then to apply for the partner temporary visa.

8. The criteria for the partner temporary visa was set out in cl.820 in sch.2 to the Regulations. Relevantly, cl.820.211, which was described as a criterion to be satisfied at the time of the application, required that the applicant be the spouse or de facto partner of an Australian citizen and, in the case of an applicant who is not the holder of a substantive visa, relevantly, that the applicant satisfied criterion 3001 of sch.3:

   ...unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

9. In order to meet criterion 3001, the application must have been validly made within 28 days after the relevant day. For the purposes of the applicant and his visa application, the relevant day was the last day the applicant held a substantive visa. That, as found by the Tribunal, was 13 January 2004, being the day on which the applicant’s business visa ceased.

10. For that reason, it was clear, and in fact not contested, that the applicant did not meet criterion 3001, simply because he had made an application at least more than eight years after his last substantive visa had ceased.

11. The question that arises in ground 1 is whether the Tribunal considered that the waiver of the criterion 8503 constituted a compelling reason for not applying the criterion 3001. It was clear from the applicant’s migration agent’s submissions on 14 January 2015, that that waiver was put forward as a basis upon which the Tribunal might consider there were compelling reasons.  It said so in express terms.

12. The Minister conceded that the Tribunal did not, in its statement of reasons, expressly refer to the waiver of the condition 8503. He submitted, however, that the submission in which it was referred to was expressly referred to by the Tribunal at [28] of its reasons and that, in any event, the Tribunal was not required to consider what was simply an earlier administrative decision. He further submitted that the Tribunal consider for itself the matters apparently underlying the waiver decision made in August 2013, and for that reason, there was no error.

13. I agree with each of those submissions. First, the fact of the waiver decision itself could not, in my view, amount to a compelling reason for not applying a criterion. That is principally because the circumstance relevant to the waiver of condition 8503 was a different question to that raised by sub-cl.820.211(d).

14. In reg.2.05, there had to be compelling and compassionate circumstances that result in a major change to the person’s circumstances. Admittedly, if one were to satisfy those circumstances, one might readily say that there were compelling circumstances in the terms of cl.820.211. Nevertheless, it remains a question to be determined by the satisfaction of the relevant decision-maker.

15. The matters that led to the waiver of condition 8503 were, according to a submission of the migration agent, the wife’s medical condition. That medical condition was contained in the documents that I have referred to above. The applicant referred to each of those matters, as well as to the submissions made to it in respect of those matters at the hearing before it.

16. In light of that, I am satisfied that the Tribunal did take into account all of the matters that were pertinent to the waiver of the condition 8503. That conclusion is fortified by the fact that the Tribunal expressly stated that it had considered all of the evidence before it, including the submissions which contained the medical records and the waiver record. In light of that, I am satisfied that there was no error by the Tribunal in simply failing to refer to the waiver of condition 8503.

17. If I were wrong about that, I would, in any event, have refused to grant relief. That is because, as conceded by the applicant’s migration agent, the breakdown of the applicant’s relationship precluded the grant of a visa.

Conclusion

1. For those reasons, the Tribunal’s decision is not affected by any relevant error and the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 23 July 2015