Luo v Minister for Immigration

[2020] FCCA 373

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUO v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 373

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Migrant) (Class BC) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 476
Migration Regulations 1994 (Cth), reg.1.15A, cl.100.211, sch.2

Applicant: YUXIAN LUO

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1691 of 2019

Judgment of: Judge Street

Hearing date: 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Sydney

Delivered on: 24 February 2020

REPRESENTATION

Counsel for the Applicant: Mr A Moutasallem

Solicitors for the Applicant: Ariana Defence Lawyers

Solicitors for the Respondents: Mr L Leerdam
Mills Oakley

ORDERS

1. Leave is granted to the applicant to rely upon the two grounds identified in Exhibit B and directs the applicant to file and serve an amended application identifying the two grounds formulated in Exhibit B on or before 28 February 2020.

2. The first respondent file the written submissions dated 24 February 2020 on or before 28 February 2020.

3. The oral application for an adjournment is refused.

4. The amended application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 24 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1691 of 2019

YUXIAN LUO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 June 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Migrant) (Class BC) visa (“Partner visa”).

2. The applicant is a citizen of China.

3. On 7 July 2014, the applicant applied for a Partner visa on the basis of her alleged spousal relationship with a sponsor.

4. On 24 July 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Partner visa. In particular, the Delegate was not satisfied that the applicant and the sponsor had a genuine and continuing relationship. The Delegate referred to the applicant’s claim that she had been living together with the sponsor at a particular address in Auburn, New South Wales. The Delegate also referred to a tenancy agreement that appeared unprofessional, was not dated, did not include an end date and identified inconsistent information with respect to the alleged rent. The Delegate gave no weight to the document.

5. On 25 July 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.

6. By letter dated 29 February 2019, the Tribunal informed the applicant that it was unable to make a favourable decision on the information before it. The letter invited the applicant to attend a hearing on 29 April 2019. The applicant appeared on that date to give evidence and present arguments.

7. Prior to the hearing, the applicant provided a document, which appears at pages 251 to 261 of the Court Book, concerning a different unit at the same address in Auburn. The document purported to identify a start date of 23 February 2018, an end date of 23 August 2018, the term being for a six month period and a particular amount of the rent as payable in advance starting on 23 February 2018. That was a document which on its face the applicant gave to the Tribunal for the purpose of the application for review within the meaning of s.359A(4)(b) of the Act.

8. Following the hearing, on 5 May 2019, the applicant provided further submissions which addressed certain issues of concern.

9. The Tribunal in its reasons identified the background to the review application. The Tribunal identified the issue in the present case being whether or not the applicant is a “spouse” within the meaning of s.5F of the Act. The Tribunal in that regard expressly referred to the requirement in respect of consideration of reg.1.15A(3) of the Migration Regulations1994 (Cth) (“the Regulations”).

10. The Tribunal noted that the applicant provided inconsistent information in relation to financial matters and household expenses, including the amount of rent the applicant and sponsor and their sub-let tenants pay and about utility bills and who pays them.

11. The Tribunal did not accept that the parties pool their financial resources or share any day-to-day household expenses.

12. The Tribunal found that there is no evidence that the applicant and the sponsor have any joint responsibility or care and support of children.

13. The Tribunal referred to the applicant’s claims to have been living together with the sponsor at a particular unit in shared accommodation at an address in Auburn.  The Tribunal identified the applicant’s claim to have moved together with the sponsor to a larger unit at a different address in Auburn.

14. The Tribunal expressly referred to discussing with the applicant the leases she provided. That is on its face a clear reference to discussing both the first lease in respect of the address at Auburn and the second lease in respect of the larger unit to which the applicant claimed to have moved also at Auburn.

15. The Tribunal referred to the first lease being incomplete, recording a start date on 11 September 2015 and no end date and that all signatures were witnessed by the sponsor. The Tribunal then referred to the second lease for the property in respect of the larger unit being incomplete and the sponsor’s signature not being witnessed.

16. On a fair reading of the Tribunal’s reasons, it is apparent that the reference to the first lease being incomplete is a reference to the smaller unit because of the reference to the start date and no end date. It is apparent that there is a start and end date in relation to the second lease, being the larger unit lease, which was incomplete and the sponsor’s signature was not witnessed. The reference to the start and end dates clearly identifies the larger unit lease being referred to by the Tribunal in that regard.

17. The Tribunal identified the applicant’s evidence regarding the sponsor’s working hours to be in conflict with the sponsor’s evidence. The Tribunal identified inconsistent evidence about the applicant and the sponsor going bed.

18. The Tribunal did not accept that the applicant and the sponsor shared living arrangements or a household as they claimed. The Tribunal did not accept that the applicant and the sponsor share responsibility of the housework as claimed.

19. The Tribunal referred to the social aspects of the relationship between the applicant and the sponsor. The Tribunal accepted that the applicant and the sponsor plan and undertake joint social activities. The Tribunal, however, was not satisfied in relation to the credibility of the applicant.

20. The Tribunal referred to the commitment of the applicant and the sponsor to their relationship. The Tribunal referred to the applicant and the sponsor having married in October 2013. The Tribunal referred to the applicant entering Australia in December 2014. The Tribunal referred to the applicant’s claims to have begun living together with the sponsor and that they want to spend the rest of their lives together. The Tribunal referred to the absence of details about when the parties met and was not satisfied that the applicant was credible in this regard.

21. The Tribunal also referred to having explored with applicant the future plans she had with the sponsor.

22. The Tribunal referred to the applicant and the sponsor having claimed to have met in 2009 and to have lived together in China and Australia since their marriage in October 2013. The Tribunal referred to the applicant and the sponsor providing inconsistent information about when they met, their living arrangements and their household.

23. The Tribunal did not accept the applicant’s claims about when applicant and the sponsor met and the time they claimed to have lived together. The Tribunal did not accept that the applicant and the sponsor provide companionship and emotional support to each other or that they see their relationship as long-term.

24. The Tribunal referred to the inconsistent information provided by the applicant. The Tribunal referred to statements having been provided by people who appear to be unknown to the applicant. The Tribunal also referred to the lease documents provided appearing to be incomplete.

25. The Tribunal referred to the inconsistent evidence and credibility concerns and was not prepared to accept that the evidence of the applicant and the sponsor about their commitment to the relationship.

26. In these circumstances, the Tribunal found that, at the time of the decision, the applicant and the sponsor do not have mutual commitment to a shared life to the exclusion of all others, that they have a genuine continuing relationship or that they live together and not separately and apart or a permanent basis.

27. The Tribunal was not satisfied that the applicant satisfied the requirements of s.5F(2) of the Act. The Tribunal found that the applicant did not meet the criteria in cl.100.221 of sch.2 to the Regulations.

28. Accordingly, the Tribunal affirmed the decision under review.

The grounds

1. At the commencement of the hearing, the applicant was granted leave to rely upon two grounds which were the subject of Exhibit B as follows:

   1. The Tribunal fell into jurisdictional error, in the sense identified by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152.

   Particulars

   a) In arriving at its ultimate decision to affirm the decision of the delegate, the Tribunal expressed doubts or concerns about the reliability, authenticity or credibility of the 3306 Auburn residential lease agreement;

   b) The Tribunal’s treatment of the 3306 Auburn residential lease agreement was adverse to the applicant's case;

   c) The Tribunal failed to put the applicant on notice of its doubts or concerns about the 3306 Auburn residential lease agreement; and

   d) In doing so, the Tribunal denied the applicant procedural fairness.

   2. The Tribunal fell into jurisdictional error in failing to consider the duration of the relationship of the applicant and sponsor.

2. Mr Moutasallem of counsel on behalf of the applicant then sought an adjournment in order to obtain the transcript of the hearing. No issue of adjournment was raised before leave had been granted to rely upon the two new grounds.

3. In relation to the adjournment application, when the Court raised with Mr Moutasallem that ground 1 could not succeed for want of a transcript, Mr Moutasallem maintained that that was not the case and that, if the Court accepted his submissions, he could still succeed in relation to ground 1.

4. The adjournment application was opposed by the first respondent.

5. The Court made an order refusing to grant an adjournment and indicated that it would provide reasons in that regard.

6. A further adjournment request was then made by Mr Moutasallem for an opportunity to obtain the transcript so as to go through the same to try and find any other error.

7. That adjournment was not the subject of any support by the first respondent.

8. These proceedings were fixed for hearing on 24 July 2019. A belated instruction to practitioners is not a proper basis upon which an adjournment should be granted.

9. Further, the Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. The applicant has had ample time in respect of the proceedings commenced on 5 July 2019 to obtain legal representation if the applicant wished to do so. The applicant has also had ample time as a result of the orders made on 24 July 2019 to put on evidence.

10. The Court does not accept that the last minute instruction of lawyers provides a proper basis for an adjournment either to go fishing in relation to the transcript at large, the subject of the second request for an adjournment, or for the purpose of seeking to further advance ground 1, particularly in circumstances where it is alleged that ground 1 can succeed even without the transcript.

11. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.

12. It is for these reasons that the application for an adjournment was refused.

13. In the course of submissions, Mr Moutasallem renewed the application of an adjournment. The substance of the application was the identical same grounds. The Court is not satisfied that any such adjournment request was appropriate and declined to entertain this in circumstances where the Court had already ruled on the adjournment and no further material change had been identified that warranted further consideration by the Court.

Ground 1

1. In relation to ground 1, Mr Moutasallem took the Court to the Tribunal’s reasons in relation to the reference to having discussed the leases and invited the Court to infer, notwithstanding that reference, that there had been no discussion in respect of the larger unit lease being incomplete and lacking a witness to the sponsor’s signature. In this regard, Mr Moutasallem took the Court to the Tribunal’s reasons in relation to paragraph 47 and the reference to statements being provided by persons unknown to the applicant and the conjunction following which there is reference to lease documents provided by the applicant appearing to the Tribunal to be incomplete.

2. Mr Moutasallem submitted that it could be inferred that there had been an adverse credit finding rejecting the lease documents as being genuine and that the Court should infer that such an issue was not raised in the discussion identified by the Tribunal with the applicant at paragraph 25 of the Tribunal’s reasons and that no issue of concern in relation to the leases had been raised and that the submissions that were provided following the hearing which sought to address issues of concern made no reference to the lease.

3. The matters referred to by Mr Moutasallem are not a basis upon which the Court should infer that the issue was not raised by the Tribunal. The Tribunal’s finding is no higher than that the second lease was incomplete. On no basis could that be said to have been material to the adverse credibility findings.

4. Further, the submissions identifying matters of concern are not a basis upon which the Court should infer that, contrary to what is said in paragraph 25 of the Tribunal’s reasons in respect of discussing the lease with the applicant, there was no discussion in respect of the second lease for the larger unit being incomplete and the sponsor’s signature not being witnessed.

5. The Court declines to draw any such inference. There is no evidence put forward to the Court other than the Tribunal’s reasons that refer to having discussed the leases with the applicant. In those circumstances, there is no basis to find that the Tribunal did not raise, to the extent it could be characterised as an issue, its concern in respect of the incomplete second lease and the want of the witnessing of the sponsor’s signature.  For this reason alone ground 1 cannot succeed.

6. In any event, there is no basis to find that the reference to the incomplete lease and want of a signature was in any way material to the adverse credibility findings. It is not of itself an issue that would have warranted an express raising with the applicant in the context of the circumstances of the present case where the Tribunal has clearly identified its reasoning in relation to inconsistencies in respect of the applicant’s and the sponsor’s evidence and credibility findings adverse to the applicant.

7. The reference in paragraph 47 of the Tribunal’s reasons to the incomplete lease does not give rise to the incomplete lease having been material to the adverse findings of the Tribunal. The issue of the incomplete lease is not one in respect of which it could have been said to be material or of a kind that could have given rise to a different outcome in respect of the review being conducted by the Tribunal. There was no denial of procedural fairness.

8. Further, the Court accepts the first respondent’s submission that the incomplete lease was information provided by the applicant for the purpose of the review as referred to above and that is a further reason why no alleged error in respect of ground 1 can be made out.

9. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Moutasallem contended that the Tribunal had fallen into jurisdictional error by failing to have regard to the mandatory considerations required under reg 1.15A(3) of the Regulations. Mr Moutasallem referred to the requirement of reg 1.15A(3)(i) of the Regulations concerning the duration of the relationship between the applicant and the sponsor. Mr Moutasallem referred to the reasoning of the Tribunal not accepting when the applicant and the sponsor met and also to the reasoning where the Tribunal accepted that they represented themselves to other people as being married and that they plan and undertake joint social activities.

2. In that context, Mr Moutasallem submitted there appears to have been no consideration by the Tribunal of the length of the relationship. That is completely contrary to paragraph 45 of the Tribunal’s reasons. Quite apart from the other references to the applicant’s evidence as to the applicant and the sponsor living together. The Tribunal in paragraph 45 of its reasons was clearly taking into account the duration of the alleged relationship in reference to the proposition that the applicant and the sponsor met in 2009 and lived together in China and Australia since their marriage in October 2013. There is no basis to find that the Tribunal failed to take into consideration reg 1.15A(3)(i) of the Regulations.

3. No jurisdictional error as alleged in ground 2 is made out.

4. Accordingly, the amended application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  13 March 2020