Lu v Minister for Immigration and; Lu v Minister for Immigration
[2018] FCCA 2147
•24 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LU v MINISTER FOR IMMIGRATION and LU v MINISTER FOR IMMIGRATION | [2018] FCCA 2147 |
| Catchwords: MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Ametllari v the Minister for Immigration [2015] FCCA 603 Singh v Minister for Immigration & Multicultural Affairs [2006] FMCA 1163 |
| Applicant: | DI LU |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 740 of 2017 |
| Applicant: | DI LU |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 743 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 24 July 2018 |
| Date of Last Submission: | 24 July 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 24 July 2018 |
REPRESENTATION
| Counsel for the Applicant in MLG740/2017: | Mr Poyner |
| Solicitors for the Applicant in MLG740/2017: | FCG LEGAL PTY LTD |
| Counsel for the Respondent in MLG740/2017: | Mr B. McGlade |
| Solicitors for the Respondent in MLG740/2017: | CLAYTON UTZ |
| Counsel for the Applicant in MLG743/2017: | Mr Poyner |
| Solicitors for the Applicant in MLG743/2017: | FCG LEGAL PTY LTD |
| Counsel for the Respondent in MLG743/2017: | Mr B. McGlade |
| Solicitors for the Respondent in MLG743/2017: | CLAYTON UTZ |
ORDERS
That the Application for leave to file out of time in MLG740/2017 be refused.
That the Application filed in MLG743/2017 be dismissed.
That the Applicant pay costs fixed in the amount of seven thousand, three hundred and twenty-eight dollars ($7,328.00) to the Respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
MLG 740 of 2017
| DI LU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
MLG 743 of 2017
| DI LU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The issues raised in this judicial review application have been somewhat unique and have caused me a great deal of thought to resolve some of the trickier issues.
The factual matrix that surrounds this matter is that the Applicant is a citizen of China. When she was 21, her father applied for a business skills provisional visa to come to Australia. On that application, the Applicant was described as a dependent child aged 18 or over. The Applicant gave her details as a female born on 29 February 1988. She ticked the box marked “never married or been in a de facto relationship”.
She signed the application and acknowledged the correctness of it on 29 December 2009. Eventually, that visa was granted, and she entered Australia on 22 June 2011.
On 5 March 2014, the Applicant lodged her own 892 sponsored business owner visa application. That visa application was granted in June 2014. It was a permanent visa. It seems that the Applicant stayed here for about six months but then went back to China.
On 29 June 2015, a person by the name of Bin Li applied for a partner visa. The Applicant was the sponsor of Bin Li. The Applicant was not in Australia at that time. Several documents were provided in support of the application, including the following document that was described as “a half-page document signed by the Applicant and Bin Li”, in which they both state:
“At the end of 2007, we bought a house after returning from Casablanca. At the end of 2009, we started living together before getting married. We lived together every day as husband and wife until we got married in 2013 after which we lived officially as husband and wife. So we have been living together from 2009 to the present, never separated during this period.”
The Department was processing that application. I should say a case note was recorded by a person Li Li. The note details a further assessment on the sponsor’s eligibility, the concern being whether the sponsor is eligible having been granted a 163 visa as a dependent child, that being the original visa that she was granted. The note continues:
Both confirmed they lived together as spouse from Jul-Dec 2007 when they were in Casablanca. PA and SP moved and lived and lived together as de facto partner [sic] since 2009. Both confirmed the SP was unemployed from 2009 to Mar 2013 and the PA covered all family expenses. The PA and SP jointly operated the tea house since Mar 2013.
SP confirmed she didn_t [sic] have evidence to demonstrate that she had lived with the PA since 2009.
Both statements to clarify the de facto history requested. Request sent to MA by email and the email saved in TRIM
the departmental registry, it would seem.
That document is at page 57 of the Court Book. Somehow, a red flag was raised within the Department because this information was quite different to the information on the original visa application which had said “never married or been in a de facto relationship” as at 29 December 2009.
On 24 January 2017, the Minister cancelled the Applicant’s 892 visa.
The Applicant, having been given notice that the visa had been cancelled, was invited to show that the ground for cancellation did not exist or that there was a reason why the visa should not have been cancelled. The Applicant chose to engage in that process.
On 8 March 2017, the Minister declined to revoke the cancellation.
On 12 April 2017, the Applicant applied to this Court for a judicial review of both the decision to cancel the visa and the decision not to revoke the cancellation.
The application must be made to this Court because the Applicant is not in Australia and therefore cannot avail herself of recourse to the Administrative Appeals Tribunal (“the AAT/Tribunal”).
The first application to this Court was made 88 days after the decision and is therefore out of time. The Court needs to decide whether it will allow an extension of time within which to file this application.
The second application was made 35 days after the decision and is therefore within the prescribed period.
As I said, this matter has raised a number of discrete legal issues. The legislative power to cancel the visa must be examined. Part 2, Division 3, Subdivision C of the Migration Act 1958 (Cth) (“the Act”) is headed ‘Visas Based On Incorrect Information May Be Cancelled’. Section 101 of that Act says this:
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Section 100 talks of incorrect answers and that:
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
Section 107 is headed ‘Notice of Incorrect Applications’. Subsection 107(1) reads:
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
Section 107A is ‘Possible Non-Compliances In Connection With A Previous Visa May Be Grounds For Cancellation Of Current Visa’. That section is there because it does not matter that the non-compliance is with the current visa that the person is on. It can be any information which had been previously provided to the department. Section 108 says that:
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
Section 109, ‘Cancellation of Visa If Information Incorrect’, subsection (1) says:
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances; may cancel the visa.
For these purposes, the regime that applies pursuant to subdivision C is that if the Minister is of the view that incorrect information has been submitted in a visa form, the Minister must give the visa Applicant or visa holder a notice and that the Applicant must respond to that notice within the prescribed time. The Minister must then consider the response given and then make a determination as to whether or not the Minister will cancel the visa.
Therefore, the subdivision is predicated upon the Minister issuing the notice and giving the Applicant a chance to be heard before making the decision to cancel the visa.
Subdivision D of the Act is titled ‘Visas May Be Cancelled On Certain Grounds’. The relevant part of s.116 reads as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;
Section 118 reads as follows:
118 Cancellation powers do not limit or affect each other
The powers to cancel a visa under:
(a) section 109 (incorrect information); or
(b) section 116 (general power to cancel); or
(c) section 128 (when holder outside Australia);
…
Subdivision F of the Act is titled “Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia”. Section 127A is an “Exhaustive Statement of Natural Justice Hearing Rule”, but s.128, “Cancellation of Visas of People Outside Australia”, which is the main section here, reads this:
128 Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
On the face of it, there is an absurdity. Section 128 gives the Minister power to cancel without notice a visa of someone who was outside Australia, and the prerequisite for that is that there must be a ground for cancelling the visa under s.116. But s.116(d) has two prerequisites. They are:
a)that the holder has not entered Australia or has not been immigration cleared if they have entered Australia; and
b)the visa would be liable to be cancelled under subdivision C.
Whilst the Applicant was outside of Australia at the time of the cancellation decision, the clear evidence is that the Applicant had entered Australia pursuant to her 892 visa after it was granted in June 2014. She was in Australia for about six months before she went back to China where she and her husband lodged the partner visa application.
The question is how does this section affect the Applicant when she cannot be said to have not entered Australia or not been immigration cleared? In Ametllari v the Minister for Immigration [2015] FCCA 603 my brother Judge Smith wrote this at [29] and [30]:
29. First, as noted by the Full Court in Cheaib v Minister for Immigration & Multicultural & Indigenous Affairs [1997] FCA 562; (1997) 75 FCR 308, the Explanatory Memorandum that accompanied the Migration Reform Bill 1992 which introduced s.128 revealed that the power given under that provision was aimed at visa holders who might respond to a notice by travelling to Australia in the belief that it would be more difficult for the person’s visa to be cancelled and the person removed: item 149 at p.39.
30. Secondly, as s.118(3) makes clear, the various cancellation powers are not limited by or otherwise affected by each other.
It seems to me, then, that when properly constructing s.128, the prerequisite of the holder having not entered Australia or if entered, not been immigration cleared, does not apply.
The section applies to any person who is outside of Australia at the time that the Minister makes their decision, whether that person has travelled to Australia on a visa before or has a current visa that they have used to enter Australia and then leave Australia. This approach is consistent with the conclusions made by my brother Federal Magistrate Driver in Singh v Minister for Immigration & Anor [2006] FMCA 1163 who followed what the Full Court has said in Cheaib v Minister of State for Immigration & Multicultural Affairs (1997) 75 FCR 308.
In Singh (Supra), his Honour said at paragraph 92:
92. That may well be the result (I make no finding) but, if it is the result, it does not assist the applicants. That is because of the impact of s.118 of the Migration Act. That section makes clear that the terms of s.116 do not limit or effect the powers of cancellation under s.128. In Cheaib at page 314 Lockhart J said:
In my view s118 operates to ensure that the Minister’s power of cancellation of visas under s128 is not limited or otherwise affected by the existence of powers of cancellation that emanate from other sources including s109 or 116. Tamberlin J concluded that s128 and the provisions that follow in subdiv F were designed to provide an independent power for the Minister to cancel visas, without notice, unconstrained by the presence of other cancellation powers provided under the Act in circumstances where the visa holder is outside Australia at the time of the cancellation. His Honour found that subdiv F established a specific regulatory framework to implement this purpose and permitted cancellation without prior notice. I agree with those views.
That authority makes clear that the terms of s.116 do not limit or affect the powers of cancellation under s.128.
His Honour continued at paragraph 93:
It follows, and I find, that the “ground” in s.116(1)(d) does not include the words of limitation with which the paragraph commences. Any other result would render the paragraph unavailable to a decision maker under s.128 and be wholly inconsistent with the Parliamentary intention established in relation to s.118.
For like reasons, I cannot accept the applicants’ contention that the ground was unavailable in s.116(1)(d) because of the further words of limitation in it relating to the operation of subdivision C. I did find that contention attractive at the trial of this matter. It seems to me an extremely odd result that a visa can be cancelled without notice on the basis of a ground of cancellation that on its face requires prior notice of intention to cancel to be given. That is the effect of the operation of subdivision C.
It may still be said that there is an absurdity with regard to the second prerequisite. To be liable for cancellation under subdivision C, a person must be given a notice. But the whole reason for the existence of s.128 is to allow the Minister to cancel the visa without notice.
One needs to look at the rules of statutory interpretation. The literal interpretation that the Applicant here relies upon would have that, notwithstanding that s.128 talks of the power of the Minister to cancel a visa without notice, the power to cancel without notice must be subject to the prerequisite that s.116 has been met. And s.116(1)(d) has that the visa would be liable to be cancelled under Subdivision C – “incorrect information given by holder” – but to be liable to be cancelled under Subdivision C one needs to have been given a notice.
So, the literal rule would come up with an interpretation to the effect that, despite the Minister’s power to cancel without notice the visa, the Minister cannot do so if cancelling the visa under s.116(1)(d) because he needs to give a notice.
The mischief rule of statutory interpretation means that one must look at what it was that the Parliament was intending to prevent when enacting this section. As I have already alluded to, in Ametllari (Supra) the Parliament wanted to ensure that a person could not, having been given the notice, come straight back to Australia in the belief that it would be more difficult for the visa to be cancelled and the person removed.
Section 118 states that the powers to cancel under ss.109, 116 and 128 are not limited or otherwise affected by each other. The literal rule would mean that s.128 is limited by s.116. And once here, one must then look at the absurdity rule which is that any interpretation of a statute that would lead to an absurdity cannot be the proper interpretation.
Going then to what the Full Court in Cheaib said. In that case at page 319, O’Loughlin J wrote this:
The appellant raised the further alternative submission. It was to this effect: where there is a specific power which permits cancellation of a visa subject to prior notice being given (such as s.116), the existence of another broader power (such as s.128), apparently covering the same ground but without the procedural safeguard of prior notice, should be read down so as to not apply to those cases where the more limited provision (that is s.116) is relevant and applicable. It was submitted that it is unlikely that Parliament intended that the Minister or his or her delegate should have the power to decide whether procedural safeguards were appropriate or not. This argument must be rejected. To adopt it would mean the emasculation of s.128; it would ignore the fact that the legislature saw fit to insert an express provision entitling the Minister, in certain circumstances, to summarily cancel a visa without prior notice.
In my view, that is a correct summary and it would be absurd to interpret the section so that it required a notice to be given to an applicant before the power could be exercised. I am of the view that s.128 should be interpreted as requiring the Minister to be satisfied that there have been grounds for cancellation under s.116 and the section is not limited by either the person having not entered Australia, or has so entered but not been immigration cleared, nor that it be limited by the person having to have been given a notice pursuant to Subdivision C.
In my view, the correct interpretation is that s.128 allows a Minister, once satisfied that there is a ground for cancelling the visa under s.116 – and if that is pursuant to s.116(1)(b) that simply incorrect information has been given by the holder – and that it is then appropriate to cancel that visa, then the Minister may without notice to the holder of the visa cancel the visa.
Such an approach is consistent with the purpose of the Act and the regime that obtains when a person is in Australia as opposed to a person who is outside of Australia. If a person is in Australia and it has been discovered that the person has given incorrect information, then the regime is that a notice is given, the person has a chance to respond to the notice, those matters are then considered and a decision is made by the Minister whether to cancel the visa or not. If the decision is that the visa is to be cancelled, then under the provisions, there is no other mechanism by which the Minister may look at that decision again.
In effect, it means that a person aggrieved by that decision must then go to the Administrative Appeals Tribunal. In respect of a person whose visa has been cancelled pursuant to s.128, s.129(1) says:
129 Notice of cancellation
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; …
Section 131(1) says:
131 Decision about revocation of cancellation
(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
In effect, that is the safeguard that was spoken of in the argument before the Full Court in Cheaib (Supra). That is, that once cancelled, the person does have an opportunity to, in effect, plead their case, and the Minister must consider that, and if the prerequisites in s.131 are satisfied, then the decision to cancel must be revoked.
So, given that this is what I consider to be the legislative regime that applies, I should then look at the grounds for this application.
Ground One is set out as follows:
1. The respondent made a decision to cancel the applicant’s subclass 892 State/Territory Sponsored Business Owner visa (subclass 892) under s 128 of the Act in circumstances where the Respondent had no power to do so.
In the second application, ground one is:
1. The respondent’s decision to refuse to revoke the cancellation of the applicant’s subclass 892 State/Territory Business Owner visa (subclass 89s visa) under s 131 of the Act was made in circumstances where the respondent had no power to do so.
As I have gone through the legislative regime, the arguments for ground one in both the cancellation decision and the revocation decision are covered. I find that there is no substance in either and therefore both grounds fail.
In the cancellation decision, ground two for review is:
2. The decision of the respondent was affected by a misconstruction of the law.
This ground morphed somewhat during argument, but suffice it to say, the argument really was that the evidence used by the Delegate was insufficient to conclude that, at 29 December 2009, the Applicant and Bin Li were in a de facto relationship. It was submitted that the Delegate misconstrued what needed to be taken into account, and reg. 1.09A and 2.03A should have been looked at.
At pages 171-172 of the Court Book, the decision of the Delegate is reproduced. I will read the relevant portion for this matter:
Di Lu was granted a Business Skills (Provisional) visa on 15 October 2010. On 29 June 2015, Bin LI (b.16/10/1985) applied for a Partner visa, Di LU was the sponsor of Bin Li’s application. Several documents were provided in support of this application, including the following document:
A half-page document signed by Di LU and Bin LI in which they state:
At the end of 2007 we bought a house after returning from Casablanca. At the end of 2009, we started living together before getting married. We lived together every day as husband and wife, until we got married in 2013 after which we lived officially as husband and wife. So we have been living together from 2009 to the present, never separated during this period.
Based on the information, I consider that the Di LU and Bin Li have been partners in a de facto relationship, as that term is defined in Section 5CB of the Migration Act, continuously from at least 2007 until present. I consider that the visa holder and Bin Li were in a de facto relationship at the time the visa holder made the statements in her Business Skills (provisional) (subclass 163) visa application.
The Delegate goes on to reproduce the legislation at s.5CB of the Act, and then says this:
Based on the above information, I am satisfied that the visa holder provided incorrect information at;
Question 56 on the form 47BT as the Department has evidence indicating that Di LU and Bin Li have been in a de facto relationship continuously form at least 2007 until present.
And on Question 7 on the form 80…”
It is because of this extract that the Applicant’s ground is that the correct interpretation of the Delegate’s decision is that the quoted part of the material from the Applicant and Bin Li’s spousal visa application was the only evidence that the Delegate had regard to. I do not accept that that is correct. This is because the Delegate refers to:
Several documents were provided in support of this application, including the following document.
The Delegate then says “based on the information” and then later “based on the above information”. Whilst it is true that not every document that the Applicant and Bin Li provided was enumerated, and granted that all of the material that was submitted or in the Department’s possession with regard to the spousal visa information was not enumerated by the Delegate, the Delegate has clearly said that they have looked at the information, not just that half-page document and based everything on that half-page document.
But even if one were to accept, for the sake of argument, the contention made by the Applicant here that the only matter that the Delegate looked at was that half-page document, the misconstruing of the law is not made out.
The original argument was that to find whether or not there was a de facto relationship, the Delegate was required to look at the Migration Regulations, rr.1.09A and 2.03A. However, the problem with this is that at r.1.09A(2) it clearly states:
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
This is not an application; this is the Minister looking at revocation. And none of these matters were in relation to the partner visas. This was about whether there should be a revocation because of incorrect information.
Similarly, the provisions in r.2.03A only apply if the person has applied for:
a)a permanent visa, a business skills visa,
b)a Business Skills (Provisional) visa,
c)a student visa, a partner visa, a provisional visa,
d)a Partner (Temporary) visa, or
e)a General Skilled Migration visa.
This is not an application for any such visas. This is a revocation matter. So there is no need for those mandatory considerations to be looked at. It is true that these are matters that the Delegate could refer to if they want to, but that is at the discretion of the Delegate, and there is no need to do so, certainly not to the level of detail that must occur if the Delegate were assessing whether the partner visa should be granted.
In any event, the definition in s.5CB was reproduced and the de facto partner and de facto relationship were defined. De facto partners are defined in subsection (1):
(1) For the purpose of this Act, a person is the de facto partner of another person (whether of the same sex or different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection(4)).
The Applicant submits that on the quoted half-page document the construction of the term “de facto relationship” would mean that the evidence of that half page document would be insufficient for the Delegate to conclude that at 29 December 2009 they were in a de facto relationship.
In my view, the evidence may be thin, but that conclusion is certainly open, and that is all that is needed. It is not for me to look at it and determine whether, if I were deciding this matter and this half paragraph were the only evidence I was looking at, I would have come to that conclusion. It is not a matter of whether the Delegate should have made that conclusion. It is whether the Delegate could have made that conclusion.
And certainly it was quite obvious in that half-page document that there was sufficient evidence to say that the two people did have a mutual commitment to a shared life to the exclusion of others and that the relationship between them was genuine and continuing, and whether they were living together or not, they were not living separately and apart on a permanent basis and they were not related by family. Even if this were the only evidence, it is sufficient for the Delegate to have come to that conclusion.
Of course, even if it were not the only evidence and the matter from page 57 of the Court Book was also before the Delegate, which I strongly suspect it was, that would be more than sufficient evidence for the Delegate to come to a conclusion. Therefore, I conclude that ground two of the cancellation application also fails.
With regard to the revocation decision, ground two is that:
2. The respondent’s decision to refuse to revoke the cancellation of the applicant’s subclass 892 visa was based, in part, on conclusions that were perverse, illogical, unreasonable and without evidentiary basis (see. pp.9-10 of the decision).
What was said about this aspect was that there were three documents that were given to the second delegate to look at. Those documents were referred to at page 178 of the Court Book. They are reproduced in the Court book and I have looked at those.
But what the Delegate said about those, at the bottom of page 178, is this:
Di Lu submitted a number of letters from people living near her and her husband, Bin Li to verify that they were not living together till 2013. Included in these letters was a letter from Zengqun Li, a landlord confirming that the Hiumin Lu and her daughter had been living at room C66, Hongfu Zhuangyuan, No 1188, North Third Road, Boading City from 2008 to 2013.
The Delegate noted that the mother was living in Australia since 12 November 2010 and only spent a total period of approximately six months outside Australia over five occasions. The Delegate wrote this:
As a result, and because the letters can be contrived, due to Di Lu’s short period of residence in Australia since the visa grant, and due to the fact that these letters do not provide irrefutable evidence of the visa holder’s claimed living situation, I do not give these considerations any weight in the visa holder’s favour.
There are a number of other matters that the Delegate looked at and did not give any weight in the visa holder’s favour before coming to the conclusion.
The argument here is that, in looking at all of the evidence, there were three pieces of evidence that the Delegate dismissed for reasons that were not proper, and that there should have been some weight given to those documents when looking at whether or not the decision to cancel should be revoked.
One must look at the context that the Delegate was looking at. What had occurred is that the Applicant had given a signed a document on 29 December 2009 saying that she had never been in a de facto relationship and was not married. Later the Applicant gives information that suggests that she and Bin Li have lived together in Casablanca, had to return to China, had bought a house together, began living together again in 2009 and had lived continuously with each other in 2009. That was in a written application and verified then in some form of case note or interview that the Department had with the Applicant.
The Applicant put two pieces of information, and Bin Li put one piece of information, in document form to the Delegate. The first document suggested that the writer was the landlord and was saying that the mother of the Applicant and the Applicant have lived in an address in China from 2008 to 2013. The second document was a letter which had the names of the occupants at that particular address from certain dates to certain dates, which revealed that the mother had actually lived there until 2011 with the daughter and then afterwards the daughter had lived there at this particular place. The third was that the aunty of Bin Li said that Bin Li had been living with her and from 2002 to 2013 at room 203 in Zoolan City Garden.
The first document which appears at page 118 of the record is certainly incorrect, because the mother of the Applicant could not have been living there from 2008 to 2013, because she has been in Australia from 2010, except for five absences which all add up to a period of less than six months. So, there could be no reliability given to that statement. I should say that there are some other inconsistencies with these documents, as well, that were not specifically relied on by the Delegate that go to some of the dates, but that really is not to the point.
The point here is that, in looking at that first letter that was obviously incorrect, the Delegate has said:
As a result, and because the letters can be contrived, and due to the applicant’s short period of residence in Australia since the visa and due to the fact these letters do not provide irrefutable evidence of the visa holder’s claim situation, I do not give these considerations any weight in the visa holder’s favour.
To my mind, that was an assessment that was in the proper contemplation of the Delegate. The letters were given in that way. It was said that the Delegate had, as it were, descended into “poisoned-well thinking” because of his conclusion that as one letter was obviously wrong and could easily, to use the words of the Delegate, be contrived, that, therefore, he could have doubt over the other letters as well.
Whilst it may be colourfully described as “poisoned-well thinking”, it is still a logical process to look at what has been given to the Delegate. The Delegate is not looking at those items in total isolation.
The Delegate is looking at those items in the context of all of the circumstances that the Delegate is having to look at, even if it is that the delegate could simply, or should simply, have discarded one of those letters and looked at the other two. The Delegate has said that, having regard to the fact that letters can be contrived, the fact that one of those letters was obviously contrived, according to the Delegate, that the Applicant had really only been in Australia for a short time after being granted the 892 visa in the first place and the fact that these letters do not provide irrefutable evidence of the visa holder’s living situation, he gave them no weight.
The biggest criticism was the description of the letters needing to provide irrefutable evidence. I accept the submission of the Minister that that simply may be a poor choice of words by a delegate who is not so experienced as members of the IAA or the AAT in expressing what it is that they are trying to say. The fact is that those documents do not, in and of themselves, say that the persons could not have been in a de facto relationship. As has been pointed out, the two do not have to actually live together for there to be a de facto relationship in existence.
What the letters perhaps do is provide some other matters to be considered, but they, of themselves, cannot show that the persons were in, or not in, a de facto relationship. But, given the nature of the letters and those other circumstances, it was certainly open to the Delegate to conclude that he would not put any weight upon those letters. The assessment, in my view, does not demonstrate any jurisdictional error, and so I find that that ground fails.
Ground Three in the revocation application was really the same ground that was looked at in ground two of the cancellation matter and is not pressed any longer. Therefore, I do not find that there has been any jurisdictional error established.
With regard to the cancellation application, as I said at the beginning, that was some 43 days out of time. The excuse given to me is that the Applicant, instead of coming to the Court within the 35 days, decided to pursue the revocation application. Notwithstanding that in the matter that I have previously referred to, Ametllari (Supra), my brother Judge Smith found that such an excuse is a legitimate excuse, I am not so convinced.
The fact that the Applicant was pursuing another avenue of recourse is no excuse for not complying with the obligation to file the application within the statutory period of 35 days.
Given that I have found that there is no jurisdictional error with regard to the merits of the application, I am of the view that, with regard to the cancellation application, I should refuse leave to file out of time, and, as for the revocation application, I will dismiss the application.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 16 October 2018
0
3
2