Luo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1045
•7 September 2022
FEDERAL COURT OF AUSTRALIA
Luo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1045
Appeal from: Luo v Minister for Immigration & Anor [2020] FCCA 373 File number: NSD 252 of 2020 Judgment of: KATZMANN J Date of judgment: 7 September 2022 Legislation: Migration Act 1958 (Cth) ss 5F, 65, 360, 359A, 424A, 425, 474, 476
Federal Court Rules 2011 (Cth) r 16.42
Migration Regulations 1994 (Cth) cl 1.15A; sch 2 cl 100.221(2)(b)
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; 235 ALR 609; 96 ALD 1
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 436 FCR 549
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 34 Date of hearing: 5 September 2022 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 252 of 2020 BETWEEN: YUXIAN LUO
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
7 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KATZMANN J:
Yuxian Luo is a Chinese national. On 7 July 2014 she applied for a Partner (Provisional) (Class UF) (Subclass 309) visa and Partner (Migrant) (Class BC) (Subclass 100) visa on the basis of her relationship with Mr Kwok Cheong Hew, an Australian citizen (the sponsor). In a statement submitted with the visa application, Ms Luo claimed to have met Mr Hew on 10 August 2009, while he was holidaying in China, and married him during one of his several subsequent visits on 30 October 2013. She professed her love for him, her commitment to the relationship, and her desire to live with him in Australia. A statement in similar terms was furnished by Mr Hew.
On 21 July 2015Ms Luo was granted a Partner (Provisional) (Class UF) (Subclass 309) visa and entered Australia on 11 August 2015. But a delegate of the responsible Minister refused to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa and the Administrative Appeals Tribunal affirmed the delegate’s decision. Ms Luo then applied to the Federal Circuit Court of Australia for constitutional writs to quash the Tribunal decision and require it to reconsider her visa application. The application to the Federal Circuit Court (the judicial review application) was also dismissed. This is an appeal from the judgment in that matter. For the reasons that follow, the appeal must be dismissed, too.
Unless the Minister is satisfied that the criteria for a visa prescribed by the Migration Act 1958 (Cth) or the regulations have been satisfied, the Minister must refuse to grant the visa: Migration Act, s 65. One of the primary criteria for the grant of a partner visa is that the applicant is the spouse or de facto partner of the sponsor: Migration Regulations 1994 (Cth), Sch 2 cl 100.221(2)(b). “Spouse” is defined in s 5F(1) of the Act to mean being in a married relationship with another person. For this purpose, s 5F(2) stipulates that persons are in a married relationship if:
(a)they are married to each other under a valid marriage;
(b)they have a “mutual commitment to a shared life as a married couple to the exclusion of all others”;
(c)their relationship is “genuine and continuing”; and
(d)they live together or do not live separately and apart on a permanent basis.
Regulation 1.15A(2) requires that all the circumstances of the relationship must be considered on an application for a partner visa including the following conditions, listed in cl 1.15A(3):
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long-term one.
The delegate accepted that Ms Luo and Mr Hew had been lawfully married. After considering the above matters, however, she was not satisfied that they were in a genuine and continuing relationship. Consequently, she found that Ms Luo did not meet the definition of spouse or de facto partner and therefore the criterion in Sch 2 cl 100.221(2)(b) of the Regulations. And the Tribunal affirmed the delegate’s decision for substantially the same reasons. A convenient summary of the Tribunal’s reasons appears in [47] of its decision record:
The parties provided inconsistent information about: the financial aspects of their relationship; and about their household; and about the social aspects of their relationship; and about the development of their relationship. Mr Lee in his first statutory declaration statement claimed that the sponsor was his best friend and that he had known him for five years. In a statutory declaration dated 2018, Mr Lee claimed that the sponsor is his uncle. Other people who provided statements appeared to be unknown to the applicant and lease documents provided by the applicant appear to the Tribunal to be incomplete. Overall, given the inconsistent evidence and the credibility concerns, the Tribunal, is not prepared to accept the parties’ evidence about their commitment to the relationship. The parties have not satisfied the Tribunal that at the time of this decision they have a mutual commitment to a shared life to the exclusion of all others, that they have a genuine and continuing relationship, or that they live together and not separately and apart on a permanent basis.
The Tribunal’s decision was a “privative clause” decision within the meaning of s 474(2) of the Migration Act. As such it was not amenable to appeal: Migration Act, s 474(1). In order to disturb the decision, Ms Luo had to demonstrate that it was affected by jurisdictional error: Migration Act, s 476(1); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In the court below, where Ms Luo was legally represented, two grounds of review were pleaded:
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.
The notice of appeal pleads the same two grounds in precisely the same terms.
Yet this is an appeal from the judgment of the lower court, not another application to review the Tribunal’s decision. An appeal from the Federal Circuit Court is in the nature of a re‑hearing and the task of a court in an appeal of this kind is the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21]‑[22] (Allsop J, Drummond and Mansfield JJ agreeing at [1] and [2] respectively). As Allsop J put it at [30], the views and conclusions of the primary judge should not be laid to one side and the case reargued. It is incumbent on an appellant to persuade the Court that there was error in the primary judge’s findings or conclusions.
On 4 May 2020 a Registrar of the Court directed the parties to file submissions. The Minister filed submissions on 4 August 2022. Ms Luo’s submissions was due to be filed by 22 August 2022. None were filed in accordance with the directions. At the outset of the hearing, however, my attention was drawn to an email Ms Luo sent to the Registrar on 30 August 2022 and upon which she wished to rely in support of the appeal. The email did not address either of the grounds of appeal. Rather, it quarrelled with the Tribunal’s findings and sought to explain why the Tribunal may have come to an adverse conclusion. In substance, Ms Luo was inviting the Court to substitute a different decision to the decision that the Tribunal reached because it had come to the wrong conclusions. But it is not open to the Court to do so. As Brennan J explained in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
(Emphasis added.)
Ms Luo asserted that she had insomnia the night before the Tribunal hearing and was “in a bad state”. But this matter was apparently drawn to the Tribunal’s attention in a post-hearing submission in which her migration agent said that she was confused and lacked concentration during questioning. The Tribunal did not accept this as an explanation for the inconsistent evidence for the following reasons (at [46]):
At the beginning of the Tribunal hearing, the Tribunal told the applicant that if she had a difficulty understanding the interpreter or any question put to her by the Tribunal, to bring it to the Tribunal’s attention and the Tribunal would provide clarification. The applicant didn’t raise any matters at the Tribunal hearing. At the Tribunal hearing, the applicant provided spontaneous and detailed responses to questions familiar to her, including about her financial assets and about her daughter. The information the applicant provided at the time of application is that she completed secondary school and up until at least July 2014 (the time of application) she was self-employed. She stated that the information she provided was complete, up to date and correct in every way. She declared that she read and understood the information in the visa application.
Ms Luo’s email also raised questions about the conduct of the Minister’s Department, suggesting that its investigation was not thorough enough. And she claimed not to trust her migration agent, a claim which only appears to have been made after she lost in the court below as she retained him as her lawyer in the court below. Although the judicial review application was said to have been prepared by Ms Luo, a few hours after the application was filed the agent filed a notice of address for service stating that he had been appointed as her lawyer and was now acting for her.
In oral argument I repeatedly invited Ms Luo to address the matters raised by the Minister in his submissions, an invitation she declined to accept. Instead, she addressed the matters the subject of the email, invited the Court to answer the questions she had posed, urged me to consider new evidence which she did not identify and indicated her desire to add her daughter as a visa applicant.
No application was made to amend the notice of appeal to raise any of these matters. If an application had been made, leave to do so would have been required and leave will only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). Where there is no adequate explanation for the failure to take a point in the court below and the point is of doubtful merit, leave should generally be refused: VUAX at [46]–[48].
Here, no explanation was given. And the contents of Ms Luo’s email do not raise an arguable case of jurisdictional error. While fraud by a migration agent may vitiate a Tribunal decision (see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189), Ms Luo made no such allegation. Fraud is a very serious allegation, which would need to be pleaded and particularised (see Federal Court Rules 2011 (Cth), r 16.42). Consequently, if leave been sought it would have been refused.
As Ms Luo has failed to identify any error on the part of the primary judge, the appeal must fail.
In any case, I am independently satisfied that neither ground of appeal has merit.
I turn first to ground 1.
In SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152 at [35]-[37] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ noted that the Tribunal is not confined to the issues considered by the delegate. Nonetheless, their Honours said that, in the absence of steps taken by the Tribunal to notify an applicant to the contrary, he or she is entitled to assume that the issues considered dispositive by the delegate were the issues which arose in the decision under review. Consequently, if the Tribunal is inclined to reach its decision by reference to a different issue, the Court held that a failure to notify the applicant would be a denial of procedural fairness.
The decision in SZBEL was based on the Court’s construction of s 425(1) of the Migration Act, which provides, subject to s 425(2), that “the Tribunal must invite the applicant” who applies for review of a decision of the Minister (whether made in person or by a delegate) “to appear before [it] to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Section 425 appears in Pt 7 of the Act, which generally relates to the review of decisions to refuse to grant protection visas. The Court also took into account s 424A, which empowers the Tribunal to seek additional information it considers relevant and obliges it to give particulars to an applicant of certain information it considers would be “the reason, or a part of the reason, for affirming the decision under review”. The provisions relating to review of other classes of visa are contained in Pt 5. The analogues in Pt 5 of ss 425 and 424A are ss 360 and 359A. Both are in substantively the same terms as their counterparts in Pt 7.
In the present case, however, reliance on SZBEL was misplaced.
First, the 3306 Auburn residential tenancy agreement did not raise a new issue. The Tribunal discussed the document in the context of its consideration of the nature of the couple’s household and, in particular, their living arrangements. This was an issue before the delegate as well. The only difference was that the delegate was presented with additional evidence, namely a lease of a different Auburn property (the 1303 Auburn property).
Second, as the primary judge observed, no evidence (such as a transcript of the hearing) was presented to the Court to indicate that the Tribunal did not raise with Ms Luo its concerns about the residential tenancy agreement for the 3306 Auburn property. Nor should an inference to that effect be drawn from the Tribunal’s reasons because the Tribunal stated (at [25]):
Regarding the nature of the parties’ household … [t]he parties claim to have begun living together in shared accommodation in August 2015 in a unit at the 1303 Auburn address. In February 2018, they claim to have moved to a larger unit at the 3306 Auburn address. The Tribunal discussed with the applicant the leases she provided. A lease for the 1303 Auburn property is incomplete. It records a start date of 11 September 2015 and no end date and all signatures are witnessed by the sponsor. A lease for the property 3306 Auburn property is incomplete and the sponsor’s signature is not witnessed. It records a start date of February 2018 and an end date of August 2018 …
(Emphasis added.)
The burden of proving error on the part of the Tribunal rested with Ms Luo. In this context and in the face of the reference in the Tribunal’s decision to a discussion about the leases together with the absence of evidence to indicate that the Tribunal did not raise its concerns about the lease for the 3306 Auburn property, Ms Luo did not discharge her burden.
Third, Ms Luo was plainly on notice from the delegate’s decision that the question of whether she and her husband had established a joint household was in issue.
The delegate had said of the residential tenancy agreement for the 1303 Auburn property in which Ms Luo and Mr Hew claimed to live at the time of that hearing:
This tenancy agreement appears unprofessional, was not dated, did not include an end date and the rent stated you were paying… is inconsistent with the information provided in the statutory declarations you and your sponsor provided and therefore I give it no weight.
On this basis the delegate was not satisfied that the couple had established a joint household.
In SZBEL at [48] the High Court observed that “procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”.
In any event, the Tribunal is not required to disclose its disbelief in a review applicant’s evidence arising from inconsistencies in that evidence. In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; 235 ALR 609; 96 ALD 1 at [18], the High Court approved the opinion of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [24], the effect of which was that s 424A does not impose an obligation on the Tribunal to disclose its “subjective appraisals” or “thought processes” or “gaps, defects or lack of detail” in the evidence. As the text of s 359A is relevantly indistinguishable, the same must applies here.
Furthermore, the Tribunal’s obligation to alert a review applicant of matters which would be the reason, or a part of the reason, for affirming the decision under review does not extend to information that is given by the applicant for the purpose of the review: see Migration Act, s 359A(4)(b). The incomplete residential tenancy agreement is information of this kind. Ms Luo submitted it to the Tribunal for the purpose of the review.
As for ground 2 — the Tribunal’s alleged failure to take into account the duration of the relationship between Ms Luo and Mr Hew — there is equally no cause for complaint.
The Tribunal considered the evidence about when the couple met, accepted that they were married in October 2013, and that they claimed to have begun living together when Ms Luo arrived in Australia in December 2014 (at [36]–[39]). As the primary judge observed, the contention that the Tribunal failed to take into account the duration of the relationship flies in the face of what the Tribunal said at [45] of its reasons:
The parties claim to have met in 2009 and to have lived together in China and Australia since their marriage in October 2013. The parties provided inconsistent information about when they met and about their living arrangements and their household. The Tribunal does not accept the parties’ claims about when they met or about the time they claim to have lived together …
Like the primary judge, I am satisfied that the Tribunal did not make either of the alleged errors.
It follows that the appeal must be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 7 September 2022
1