Qi Yi v Minister for Immigration and Citizenship
[2007] FCA 1833
•22 November 2007
FEDERAL COURT OF AUSTRALIA
Qi Yi v Minister for Immigration and Citizenship [2007] FCA 1833
MIGRATION – whether Tribunal entitled to make decision without a hearing – whether Federal Magistrate entitled to prefer evidence of one witness over another – whether Federal Magistrate required to make further enquiries – whether Federal Magistrate was under a duty to ensure that the appellant was provided with legal aid – appeal dismissed.
Migration Act 1958 (Cth) ss 359A, 359C(2), 379C(4)
Migration Regulations 1994 (Cth) regs 1.15A, 4.17(4), Schedule 2, cl 820.21Abebe v The Commonwealth (1999) 197 CLR 510 cited
The Minister for Immigration and Ethnic Affairs v WuShan Liang (1996) 185 CLR 259 cited Waterford v The Commonwealth (1987) 163 CLR 54 citedQI YI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 1531 OF 2007
LANDER J
22 NOVEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1531 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
QI YI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
22 NOVEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1531 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
QI YI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
22 NOVEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against an order of a Federal Magistrate made on 23 July 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 3 August 2005. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a visa to the appellant.
When the appeal was called on for hearing this morning, there was no appearance by the appellant. I invited counsel for the first respondent to indicate whether he wished to proceed under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) and seek an order dismissing the appeal, or proceed under O 52 r 38A(1)(d) of the Federal Court Rules 1979 (Cth) and have me proceed with the hearing generally in relation to the appeal. He asked that I proceed with the hearing, which I have done.
The appellant was born on 1 May 1984 and is a citizen of the People’s Republic of China. On 27 June 2003 she applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. A delegate of the first respondent refused the application for the visa on 19 October 2004. On 16 November 2004 the appellant applied to the Tribunal for a review of that decision.
The appellant entered Australia as the holder of a Subclass 571 (Schools Sector) visa on 12 May 2002 which ceased on 29 May 2002. On the same day she was granted a further Subclass 571 (Schools Sector) visa which was due to cease on 12 April 2004. However, on 29 December 2002 the appellant departed Australia. She returned on 11 February 2003. On 27 June 2003 when she lodged the application she was granted a bridging visa which was due to cease on 30 July 2003. On that day she again departed Australia and returned on 14 August 2003. She was subsequently granted a bridging visa pending the disposal of her application for these visas.
The appellant’s sponsor on this application was her husband, William Tam who was an Australian citizen who was born in Sydney on 21 March 1983.
The appellant and her husband were interviewed by the delegate on 12 November 2003. The appellant was interviewed again on 1 October 2004. On 19 October 2004 the delegate refused the visas.
The appellant and her husband were married on 7 May 2003 in New South Wales. The delegate was under an obligation to consider the criteria in clause 820.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) and, in particular, determine whether the appellant was the spouse of an Australian citizen who was not prohibited from being a sponsoring spouse. Mr Tam was both an Australian citizen and not prohibited from being a sponsoring spouse so the question before the delegate, and ultimately the Tribunal, was whether the appellant was the spouse of Mr Tam for the purpose of the Migration Act 1958 (Cth) (the Act) and the Regulations.
The term “spouse” is defined in reg 1.15A of the Regulations and, relevantly, a person must establish that he or she is married to the other under a marriage that is recognised as valid for the purpose of the Act (which was the case here) and:
(1A)(b) the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.
An applicant for a Partner (Temporary) (Class UK) visa must also satisfy the criteria in reg 1.15A(2)(d):
(d) subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:
(i)they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them was genuine and continuing; and
(iii)they had:
(A) been living together; or
(B)not been living separately and apart on a permanent basis.
Regulation 1.15A(2A) is relevant. It provides:
(2A) Paragraph 2(d) does not apply if:
(a) the applicant is applying as:(i) the spouse of a person who:
(A)is, or was, the holder of a permanent humanitarian visa; and
(B)before that permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2)(c)(i), (ii) and (iii) and of which Immigration was informed before the visa was granted; or
(ii)a member of the family unit of a person who is an applicant for a permanent humanitarian visa; or
(b) the applicant can establish compelling and compassionate circumstances for the grant of the visa.
Subregulation (3) is also relevant:
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses.
The delegate determined that there were a number of inconsistencies and issues which arose out of the interviews to which reference has been made. The delegate allowed the appellant and her sponsor time to address those issues. A number of documents were provided in response.
The delegate addressed the criteria in the Regulations and concluded that the appellant and her husband did not live together and had no commitment to each other. The delegate was not satisfied that the documents demonstrated a genuine and ongoing marital relationship. The delegate was not satisfied that the appellant and her sponsor were in a genuine spousal relationship. In particular, the delegate determined:
The applicant has entered into the marriage with the sponsor solely for the purpose of obtaining permanent residence. The applicant does not satisfy the requirements of 820.211 as described by Regulation 1.15A.
In response to the application for review, the Tribunal wrote to the appellant pursuant to s 359 of the Act inviting the appellant to give additional information relevant to the issues as to whether she and Mr Tam had a mutual commitment to a shared life as husband and wife, and whether the relationship between them was genuine and continuing.
Two weeks later, on 15 April 2005, the Tribunal wrote to the appellant pursuant to s 359A of the Act. In that letter, the Tribunal raised as particulars of information that would be the reason or part of the reason for affirming the delegate’s decision the following:
(a)apparent contradictions in Departmental records between the appellant and her sponsor in relation to the following:
(i) whether Mr Tam had ever visited her at places where she was living;
(ii)the contradiction between their evidence in relation to his parents’ knowledge of the marriage;
(iii)the failure of the sponsor’s mother and brother to recognise the appellant, notwithstanding her claim that she had stayed with the sponsor’s family;
(iv)the contradiction between the appellant and her sponsor’s evidence as to where they lived and the evidence of the sponsor’s mother and brother;
(v)the sponsor having his phone bills and bank statements sent to his parents’ address and failing to advise his place of employment or a change of that address;
(vi)whether the appellant had ever lived at Auburn;
(vii)the appellant’s failure to recognise one of the persons who had made a statutory declaration that he had known her for one year;
(viii)the appellant’s failure to be able to provide any information about the official matters relating to her marriage;
(b)the contradiction in her evidence relating to her sponsor’s relationship with his parents;
(c)the sponsor’s evidence that the appellant did not wish to discuss with him substantial deposits into their joint account;
(d)the appellant’s wish that her sponsor did not know that she had worked at a brothel;
(e)the appellant’s inability to nominate her father-in-law’s name.
The s 359A letter was sent to the appellant in accordance with s 379A(4) and was thereby deemed to have been received by the appellant on 26 April 2005: s 379C(4)(a).
The letter asked for any written information and comments be provided within 28 days of the date of notification of the invitation. Regulation 4.17(4) governs the prescribed period for giving information and in the case of s 359B(2) it is 28 days after the day on which the invitation is received. This notice complied with that regulation.
In its reasons, the Tribunal records that it did not receive the requested comments within the prescribed time limit and it proceeded to make a decision on the material before it.
Section 359C(2) of the Act permits the Tribunal to make a decision on the review without taking any further action to obtain the applicant’s views on the information sought in the s 359A notice if the person does not give the comments before the time given him has passed. Moreover, s 360(2)(c) provides that the obligation under s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments does not apply if s 359C(2) applies.
In those circumstances, the Tribunal, if it did not receive the requested comments within the prescribed time, was entitled to proceed to make a decision without inviting the appellant to appear before the Tribunal and without taking any further steps to obtain the appellant’s comments on the information contained in the s 359A notice.
The Tribunal considered the evidence which had been put before the Department and the delegate and considered the criteria relevant to clauses 820.211 and 820.221 of Schedule 2.
It accepted that the appellant and the sponsor were married to each other on 7 May 2003 and that the marriage was recognised as valid for the purposes of the Act.
It discussed the financial aspects of the relationship and noted that the sponsor’s wages were paid into an account in his name alone, and the statements were addressed to his parents’ home address. It also noted there were copies of bank statements of a joint account for the period 20 May 2003 to 19 November 2003.
It discussed the nature of the household and the inconsistencies in relation to that aspect. It had regard to the social aspects of the relationship and, again, a number of inconsistencies in relation to that matter. It discussed the nature of the commitment of the appellant and the sponsor to each other.
It found:
30. The Tribunal has had regard to the evidence relating to the considerations for a spousal relationship set out in regulation 1.15A and is not satisfied that the visa applicant was or remains in a genuine spousal relationship with the sponsor at the time of application or the time of decision. In making this finding, the Tribunal was particularly influenced by the lack of evidence that the parties have ever lived together as husband and wife, as well as the lack of evidence relating to the other mandatory considerations set out in subregulation 1.15A(3), as summarised under the above headings. The Tribunal therefore finds that the visa applicant does not meet subclauses 820.211(2) and 820.221(1) of the Regulations.
31. Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Class UK visa. It follows that as the visa applicant does not meet essential criteria for a Class UK visa, the visa applicant does not meet the criteria for a Class BS visa.
The appellant applied to the Federal Magistrates Court for the judicial review of the Tribunal’s decision. The application was supported by an affidavit in which the appellant deposed that she had (through her migration agent) sent a fax to the Tribunal requesting more time for getting her documents ready.
In the proceeding before the Federal Magistrate the first respondent tendered the affidavit of Rachel White, senior legal officer in the employ of the second respondent. She deposed that she had inspected the Tribunal’s file and found a facsimile appointing a new migration agent dated 30 May 2005 and a cover letter of the same date. However, there were no facsimiles from the appellant or her agent requesting that the Tribunal give the appellant more time to provide documents or otherwise respond to the Tribunal’s letter of 15 April 2005.
The appellant called before the Federal Magistrate Mr Min Wang, who was an assistant employed by the appellant’s migration agent. Mr Wang said that the documents were sent on 30 May 2005 together with a facsimile which included a request for additional time to respond to the s 359A letter. Mr Wang said that the Tribunal contacted his employer and said that although the request was out of time there should not be a problem and the Tribunal would be in contact later to advise whether or not the extension of time had been granted. He said that there was no further contact from the Tribunal.
Ms White’s evidence was accepted by the Federal Magistrate and the Federal Magistrate preferred the evidence of Ms White to that led by the appellant which, in my opinion, he was entitled to do. In doing so, he noted that there was no independent record of the conversation and nor was the person who was said to have had the conversation, Mr Wang’s employer, Ms Cao, called. In my opinion, the Federal Magistrate was entitled to make that finding. The Federal Magistrate found that the Tribunal did not receive the request on behalf of the appellant for an extension of time within which to respond to the s 359A letter. The Federal Magistrate found that, in those circumstances, the Tribunal was entitled pursuant to s 359C to make a decision without taking any further action to obtain the appellant’s views on the information. The Tribunal was also not required to invite the appellant to appear before the Tribunal as a result of the operation of s 360 of the Act.
On the Federal Magistrate’s finding the decision is undoubtedly correct and the Tribunal proceeded in accordance with the provisions of the Act.
In any event, even if the appellant’s evidence was correct and that on 30 May 2005 a request was made for more time, the Tribunal would still have been entitled to proceed as it did. The request for more time on 30 May 2005 did not comply with a request that comments be received within 28 days of 26 April 2005.
The grounds of appeal are:
1.The Judgment made by the Federal Magistrate Court on 23/7/07 was only based on the selective evidence provided by the Minister’s representative. It has been a Jurisdictional error made by the Judge of the Federal Magistrate Court to make the judgment without further examining the phone call made to the appellant’s agent in relation to the contents of the s.359A letter by MRT. It is clearly a jurisdictional error to make a judgment before all the evidence in relation to the case was carefully examined.
2.The evidence (fax record) provided by Ms White alone could not be used to support the finding of facts since there has been more evidence that could offset the evidence (the phone calls made to the migration agent of the appellant by the MRT officer in relation to the s.359 letter).
3.The Judge has completely ignored the appellant’s witness for requesting MRT to provide phone call record as evidence to support her review application. This is another jurisdictional error made by the Federal Magistrate Court to deprive the appellant’s right of cross examining the respondents’ evidence.
4.The Judgment to pay $8.500 dollars is not in accordance with the Federal Court Rules.
5.It has been a Jurisdictional error for the Federal Magistrate Court not refer any legal aids program to the appellant. It is absolutely unfair for the Federal Magistrate Court to make the Judgment while the appellant has not any legal assistance in the court.
The grounds of appeal rather suggest that the Federal Magistrate had regard to irrelevant evidence or, alternatively, that it was not open to the Federal Magistrate to make the finding that was made and thereby the Federal Magistrate fell into jurisdictional error. There is no doubt some confusion on the role of the Federal Magistrate. The Federal Magistrate had before him the evidence of the appellant which was hearsay and the evidence of Mr Wang, which was also hearsay. On the other hand, he had the evidence of Ms White who had searched the relevant file and been unable to find the documents which were said to have been sent.
The Federal Magistrate was perfectly entitled to accept the evidence of Ms White and reject the hearsay evidence, especially where the hearsay evidence was not corroborated by the person who was said to have had the telephone call and independent documentary evidence which ought to have existed.
In any event, there is no question of the Federal Magistrate having committed any jurisdictional error. An appeal from the Federal Magistrates Court would lie even without establishing jurisdictional error. However, in this case, it was in my opinion clearly open for the Federal Magistrate to make the finding that he did.
It was contended by the first respondent’s counsel that the Tribunal’s conclusions are factual and not subject to review by either this Court or the Federal Magistrates Court: The Minister for Immigration and Ethnic Affairs v WuShan Liang (1996) 185 CLR 259. That submission must be accepted. There can be no doubt that the Federal Magistrates Court and this Court has no jurisdiction to enter into the merits of administrative decision making. The merits of administrative decision making are for those who have the relevant power to make the decisions.
An administrative decision maker does not make an error of law by making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Abebe v The Commonwealth (1999) 197 CLR 510 at [137]. Insofar as the Tribunal concluded that there was no genuine spousal relationship, that was a conclusion of fact which is not subject to review by the Federal Magistrates Court or by this Court on appeal.
It is suggested that the Federal Magistrate should have issued subpoenas or made some other enquiries. Whilst the proceedings before the Tribunal were inquisitorial, by the time they came to the Federal Magistrate on judicial review they were adversarial.
It was for the parties to adduce whatever evidence they wished in support or contradiction of the claims presented. It was for the appellant, as applicant in the Court below, to present whatever evidence she wished to rely on. If she thought there was evidence available to her in the hands of the first respondent or the second respondent or some third party, she was entitled to endeavour to obtain that evidence for the purpose of submitting it to the Court. It was not for the Court, however, to run her case.
I do not accept that the Federal Magistrate was in error in failing to refer any legal aid program to the appellant. I am not sure what application was made by the appellant for legal aid and how it might have been provided by the Federal Magistrate or by the Federal Magistrates Court. In any event, the Federal Magistrate was under no duty to ensure that the appellant was provided with legal aid.
The question of costs was one for the Federal Magistrate in the exercise of his discretion. The amount is higher than normal but that is explained by the fact that this was the second proceeding in the Federal Magistrates Court and the costs include the costs ordered by Emmett FM on 28 February 2007.
The Federal Magistrate explained why it was that he thought an award of $8,500 was appropriate and said:
14.Given that Emmett FM originally ordered that the applicant pay the Minister’s costs in the amount of $5,500 and that since then there has been an application to set that dismissal aside and the matter has also gone to a hearing today I am satisfied that the Minister’s application for costs of $8,500 dating back to the commencement of these proceedings is reasonable and that the amount is a reasonable amount to award. Further, to the extent that it is necessary and for abundant caution I will set aside Emmett FM’s order number 3 dated 28 February 2007 when her Honour awarded the Minister his costs up to that point.
In my opinion, there can be no criticism whatever that a costs order was made against the appellant. Nor, in my opinion, can there be any criticism of the Federal Magistrate’s award of the sum of $8,500 in the circumstances explained by the Federal Magistrate.
In my opinion, there is no discernable error in the Federal Magistrate’s reasons and the appeal must be dismissed. The appellant must pay the first respondent’s costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 23 November 2007
Counsel for the Appellant: The Appellant did not appear Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 22 November 2007 Date of Judgment: 22 November 2007
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