Mu v Minister for Immigration

[2016] FCCA 2619

FEDERAL CIRCUIT COURT OF AUSTRALIA

MU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2619

Catchwords:
MIGRATION – Application for a Class BC Partner (Migrant) Subclass 100 (Spouse) visa – family violence – whether the Tribunal’s refusal to grant an adjournment was legally unreasonable – principles of legal unreasonableness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.353, 357A

Migration Regulations 1994 (Cth), rr. 1.23, 1.24, 1.25, cl.100.221 of Schedule 2

Cases cited:

Minister for Immigration and Border Protection v Pandey [2014] FCA 640

Applicant: HONGBIN MU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2461 of 2014

Judgment of: Judge McNab

Hearing date: 24 June 2016

Date of Last Submission: 24 June 2016

Delivered at: Melbourne

Delivered on: 12 October 2016

REPRESENTATION

Counsel for the Applicant: Ms. Jiang-Sol

Solicitors for the Applicant: Tao Jiang Lawyers

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed 4 December 2014 be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $7023.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2461 of 2014

HONGBIN MU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of Application

1. The applicant seeks judicial review of the decision of the Second Respondent (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse to grant to the applicant a Partner (Migrant) (Class BC) Subclass 100 (Spouse) visa (“partner visa”). The Tribunal was not satisfied that the applicant satisfied the criterion in cl.100.221 of Schedule 2 to the Migration Regulations 1994 (Cth)(“the Regulations”). In particular, the Tribunal was not satisfied that the applicant had made a valid claim to have suffered “family violence” committed by his sponsoring partner, Shuyu Huang, so as to satisfy the requirements of sub-cl.100.221(4)(b) and (c).

The Delegate’s Decision

1. On 7 April 2011, the applicant applied for a partner visa, sponsored by his wife, Ms Huang, who was an Australian citizen. On

   
   

   25 March 2013, Ms Huang advised the Department that she had withdrawn her sponsorship of the applicant.

2. On 3 April 2013, the Department advised the applicant of the sponsorship withdrawal, advised him of the circumstances in which his application could continue, and invited him to provide evidence if one of those circumstances were applicable to him. Subsequently, the applicant wrote to the Department claiming that he had suffered family violence, which was one of the circumstances upon which he could “continue to be considered for the grant of permanent residence on spouse grounds”. However, the applicant did not provide the requisite evidence to support this informal claim.[1]

   [1] CB 46

3. On 3 May 2013, the Department advised the applicant that he needed to provide evidence that met the requirements set out in Instrument IMMI 12/116, in order to assess his family violence claim.[2] The Department requested that the applicant respond within 28 days.

   [2] CB 46

4. On 29 April 2013, the applicant, represented by a lawyer and migration agent (“Ms Jiang”), wrote to the Department seeking an extension of time to prepare the required evidence which would soon be emailed to the Department; and he had an appointment to see Ms Jennifer Dawson (“Ms Dawson”), a psychologist on 21 May 2013.[3]

   [3] CB 51

5. On 24 May 2013, Ms Jiang requested further time to provide the requisite evidence as Mr Mu was slow in understanding her advice, had attended the appointment to see Ms Dawson and was preparing his own 1040 statutory declarations which would be ready the following week.[4] She also stated that he was attempting to find a psychiatrist or family consultant.

   [4] CB50

6. The Department then gave a further 28 day extension, until

   
   

   25 June 2013. On 6 June 2013, the applicant provided a statutory declaration made by the applicant; and a statutory declaration by

   
   

   Ms Dawson. The applicant provided no other evidence of the type specified in IMMI 12/116.

7. On 11 September 2013, the delegate refused that application on the ground that the applicant had not made a valid claim of family violence as specified in the Regulations.

The Tribunal’s Decision

1. On 1 October 2013, the applicant applied to the Tribunal for review of the delegate’s decision.[5] Between 3 October 3013 and 11 November 2014 the applicant did not provide any material or written arguments for the Tribunal to consider, despite two invitations made by the Tribunal to do so before his hearing scheduled for 18 November 2014.[6]

   [5] CB 87

   [6] CB 117

2. At the hearing, the applicant’s agent applied for an adjournment for two weeks to provide further evidence in support of the applicant’s claim of family violence and handed up a letter from a doctor dated

   
   

   24 October 2014 which indicated that the applicant was being treated for depression. The Tribunal refused to provide additional time and noted that whilst the applicant had made a statutory declaration in relation to family violence under r.1.25, he had provided only one type of evidence specified in IMMI12/116 (which specified two pieces of evidence).[7]

   [7] CB149

3. The applicant acknowledged that the evidence did not meet the requirements of the Regulations but submits that it was evidence which could support the applicant’s case that he was mentally unwell and that he was a victim of family violence – considerations which he contended were relevant to the decision in considering whether to allow the applicant additional time to present evidence in support of his case.

4. By letter dated 19 November 2014, the Tribunal notified the applicant of its decision, made the same day, to affirm the delegate’s decision to cancel the visa. The Tribunal’s finding may be summarised as follows:

   a)the Tribunal observed that the applicant had been clearly advised by the department as early as 3 May 2013 as to how he could make a valid claim of family violence, and he had not done so.

   b)The applicant had been invited on 3 occasions to submit evidence and he had not done so;[8]

   c)although the applicant had provided two statutory declarations, it was insufficient to meet the requirements of r.1.24(b) of the Regulations as the applicant had not provided any other evidence of the type specified in IMMI 12/116;

   d)the Tribunal found that a non-judicially determined claim of family violence had not been made under r.1.23.

   [8] Tribunal’s reasons at [22]

5. Accordingly, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a partner visa under s.65 of the Act.

Grounds of Review

1. The applicant sets out the following grounds in the Amended Application filed 24 June 2016.

Applicant’s submissions

Ground 1 – Unreasonable refusal to grant adjournment of the hearing

1.The Migration Review Tribunal acted unreasonably in refusing to adjourn the hearing of the application for review before it on 18 November 2014 in the light of the material presented and proffered to the Tribunal that:

(a)  Demonstrated the Applicant had been a victim of family violence; and

(b) Demonstrated the difficulties faced by the Applicant in obtaining the evidence in the form required by the Migration Regulations 1994 reg 1.24 to satisfy the Respondents that he “had suffered family violence”.

1. The applicant conceded at [24] of his submissions that his application could not succeed on the basis of the evidence provided to the date of the Tribunal hearing. However, the applicant claims that it was unreasonable for the Tribunal to refuse his application for a short adjournment of the hearing.

2. The applicant referred to Minister for Immigration and Border Protection v Pandey [2014] FCA 640 (“Pandey”), which extracted the principles from the decision of the High Court in

   
   Minister for Immigration and Citizenship v Li

   (2013) 249 CLR 332 (“Li”). Set against those principles, the applicant at [29] states that this matter is similar to Li, as the Tribunal did not, in its reasons for refusing an adjournment, refer to the applicant’s prospects of obtaining the additional evidence sought; his mental state; other evidence which the applicant sought to present; the short period of two weeks that he sought to provide the additional evidence; the provision of two of the three documents which were required to establish a non-judicially determined claim of family violence; the fact that the matter had not been previously adjourned and that the applicant had been in Australia for just over three years.

3. Further, the applicant states that the proceedings before the Tribunal had been on foot for just over a year, and claims that none of the delay was the fault of the applicant. Also, the Tribunal erred in stating that it had given the applicant an invitation to submit evidence on three occasions (both as to number of occasions it had invited the applicant and the content of those invitations.)

Ground 2– failure to have any or sufficient regard to the legislative directions in ss 353(1) & (2) & 357A(3)

2.The Migration Review Tribunal failed to have any regard, or sufficient regard, to the legislative directions that in reviewing a decision of the First Respondent the Tribunal shall provide “A mechanism of review that is fair, just …”, “shall act according to substantial justice and the merits of the case” and “must act in a way that is fair and just” – Migration Act 1957 ss 353(1) & (2) & 357A(3).

1. The second ground asserts that in refusing the application for an adjournment of the hearing, the Tribunal did not refer to any of these legislative directions and therefore failed to take into account required considerations.

2. It was submitted that alternatively, if the Tribunal did give these directions some weight when deciding not to adjourn the proceedings, it gave such little weight to them that the Court should further conclude that it acted in a legally unreasonable manner.

Respondent’s submissions

1. The respondent submits that it was open to the Tribunal not be satisfied that the applicant had suffered family violence, as none of the circumstances set out in reg.1.23 applied, as the application for the visa did not include a “non-judicially determined claim of family violence”. The application did not include such a claim as the applicant had not presented the requisite evidence.

2. The respondent states at [31] that it is not the case that the only legally reasonable option available to the Tribunal was to adjourn the review in response to the latest request for more time to provide evidence, when the applicant (who was represented by his agent and lawyer) had hitherto failed to provide the evidence for a period of over 18 months, despite the need to do so having been repeatedly explained to him. The Tribunal had correctly decided that the applicant had sufficient opportunity to present his case and provide the requisite evidence.

3. With regard to the applicant’s mental health, Ms Jiang had indicated over 18 months prior to the hearing that the applicant was suffering from depression but was in the process of trying to make an appointment to secure the requisite evidence. No explanation was given to the Tribunal as to why the applicant had been unable to make such appointments, but notes that he had managed to make an appointment with Ms Dawson.

4. With respect to the second ground of review, the respondent submits that the applicant properly conceded that “breach” of the statutory exhortations in ss.353 and 357A does not amount to jurisdictional error. Further, the Tribunal was not required to provide reasons for refusing to grant an adjournment. In those circumstances, the Tribunal cannot have made a jurisdictional error by failing to refer specifically to each of the statutory exhortations in its reasons. Nevertheless, the Tribunal did seek to deal with the values in the statutory exhortations, including for it to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” in its reasons.

Consideration

1. The relevant legal principles are relating to legal unreasonableness in the context of a decision by the Tribunal to refuse adjournment applications are helpfully summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41]. His Honour thereafter reviewing the decision of Li in the High Court and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 stated as follows:

   41.The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).  The relevant principles may be summarised as follows: 

   (a)   The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably:  Li at [29], [63], [88]; Singh at [43].

   (b)   Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process.  Or it can be a conclusion reached without necessarily identifying another jurisdictional error:  Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c)   Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d)   In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e)   Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f)    The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g)   There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case.  A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review:  Li at [100]-[102].

   (i)    It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence.  It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j)    Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker:  Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

   42.The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable.  Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?

2. In circumstances before the Tribunal where:

   a)the applicant had been put on notice of the type of evidence required in order to make a valid non-judicial claim of family violence on 3 May 2013;

   b)on 24 May 2013 the applicant had sought an extension of time in order to lodge the necessary evidence;

   c)on 6 June 2013 the applicant had provided a statutory declaration made by him and another by a registered psychologist purportedly in support of his application;

   d)on 11 September 2013 the delegate refuse the application as the applicant had not made a valid claim of family violence as specified in the Regulations and the applicant was therefore aware of the grounds for refusal;

   e)on 1 October 2013 the applicant lost an application for review of the delegates decision before the Tribunal;

   f)by letter dated 3 October 2013 the Tribunal had written to the applicant acknowledging receipt of his application and inviting him to make written arguments;

   g)on 9 October 2014 the Tribunal had written to the applicant informing him that it considered by that letter the applicant was invited to appear before the Tribunal and give evidence and present arguments in respect of the review which was listed for hearing on 11 November 2014. The applicant did not provide any additional material at that time not withstanding that he had been given in excess of one month in order to obtain any additional material;

   h)when the applicant appeared before the Tribunal the applicant failed to provide evidence which would have satisfied the conditions of IMMI 12/116 in that two pieces of evidence were not provided.

3. The Tribunal noted at [22]:

   before doing so (refusing to grant additional time to provide further evidence) the Tribunal observed with the applicant and his representative that both had been put on notice as early as 3 May 2013 of the manner in which the applicant could make a valid claim of family violence. The Tribunal considered that the communication between the Department and the applicant had been clear and gave precise advice as to how to make a valid claim of family violence and he had not done so. The Tribunal noted also its invitation to submit evidence on three occasions and he had not done so. Despite the submission by the representative that it was difficult to obtain the evidence required by the Minister, the Tribunal considers the applicant had sufficient notice of the evidentiary requirements required by the legislation and sufficient time to obtain such evidence and advised the applicant that the Tribunal intended to proceed to make a decision on the review.

4. In my view, this is a case where the Tribunal had, through its correspondence to the applicant, given the applicant every opportunity to obtain or improve upon the evidence that he had and it was a case where it was appropriate for the Tribunal to say that enough is enough.

5. The reasons of the Tribunal are intelligible and it could not be said that the decision appears to be arbitrary, capricious or without common sense or plainly unjust. The history of the matter showed that the applicant had previously been given the opportunity to obtain the evidence required to support his claim and in those circumstances, the Tribunal had not acted unreasonably in refusing to adjourn the proceeding and it follows that ground two fails on the basis that the Tribunal has failed to act according to substantial justice and the merits of the case.

1. In those circumstances, the court orders the application be dismissed and that the applicant pay the first respondent's costs fixed in the sum of $7023.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 12 October 2016