Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1566
•13 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1566
File number(s): SYG 127 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 13 July 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass TR-676 visa Protection visa – whether the Tribunal failed to comply with its obligation under s 348(1) of the Migration Act 1958 (Cth) to review the decision of the first respondent by failing to consider evidence that was relevant to its decision to affirm the refusal of a subclass 820 Partner visa – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) sch 3 cl 820.211(2)(d)(ii)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 604
Hassan v Minister for Immigration [2020] FCCA 2385
MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510
PGSM v Minister for Home Affairs (2020) 382 ALR 195
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121
Number of paragraphs: 42 Date of last submission/s: 8 July 2021 Date of hearing: 8 July 2021 Place: Parramatta Counsel for the Applicant: Mr Poynder Counsel for the Respondents: Ms Poukchanski ORDERS
SYG 127 of 2017 BETWEEN: YUE QIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
13 JULY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondents costs fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant arrived in Australia for the first time on 12 August 2004, travelling with a Chinese tour group on a Subclass TR-676 visa valid for 18 days, until 30 August 2004. On 27 August 2004, a few days before the applicant’s Tourist visa ceased, he lodged an application for a Protection visa.
The Protection visa was refused by the Department of Immigration (“the Department”) on 15 September 2004. The applicant sought merits review at the then Refugee Review Tribunal. On 16 December 2004, the Refugee Review Tribunal affirmed a delegate of the Minister for Immigration (“the delegate”) decision not to grant the applicant a Protection visa.
The applicant sought judicial review of the Refugee Review Tribunal decision. This Court dismissed the application for judicial review on 12 September 2007. The applicant then lodged two unsuccessful Ministerial Intervention Applications on 29 March 2008 and again on 13 August 2010.
In 2010 and again in 2011, the applicant was granted bridging visa E’s on departure grounds but he did not depart Australia and remained on shore unlawfully until he lodged his current Partner visa application on 6 February 2014. The applicant met the sponsor in 2012 and they were married in 2014.
On 6 February 2014, the applicant applied for Partner (Temporary) (Class UK) visa. On 15 December 2015, the delegate refused to grant the applicant his visa. The delegate refused to grant the visa, on the basis that the applicant did not satisfy cl 820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”), because the applicant did not satisfy the criteria under Schedule 3 of the Regulations and there were no compelling reasons for waiving the criteria.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 19 December 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant his Partner visa.
The applicant now seeks judicial review of the Tribunal’s decision
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the relevant background, the Tribunal noted that its task was to determine whether or not the applicant, who was not the holder of a substantive visa at the time of his application, met certain criteria in Schedule 3 to the Regulations. As the Tribunal determined that the applicant did not meet any of the Schedule 3 criteria, the question for determination was whether or not there were compelling reasons for not applying those criteria:
(see; cl 820.211(2)(d) of the Regulations). At paragraph 20 of its decision, the Tribunal listed the following matters that were put to it as being compelling reasons for the waiver of the requirement for the applicant to meet the Schedule 3 criteria. They were:
a) The sponsor’s financial reliance on the applicant;
b) Gynaecological health of the sponsor;
c) A doctor’s advice that the sponsor would benefit, referring to recurring endometriosis, from conceiving a baby;
d) The sponsor is emotionally dependent on the applicant and will suffer physically and mentally if separated from him and this will be greater than the “standard” hardship suffered by other people in the same situation;
e) The delay in applying for a Partner visa was beyond the control of the applicant because of his fear of persecution in China and the sponsor’s health;
f) The applicant should not be prejudiced simply based on his adverse migration history and is non-financial contributions to the relationship should be considered.
At paragraph 21 of its decision, the Tribunal noted that it had given consideration but not given undue weight to the following;
a) The applicant’s history of non-compliance;
b) The length of time the applicant has been unlawfully onshore;
c) The reasons why the applicant became an unlawful;
d) The reasons why the applicant did not try to regularise his status; and
e) What steps, if any, the applicant has made to regularise his status (other than applying for a Partner visa).
At paragraph 23 of its decision, the Tribunal noted that the waiver may be justified if the applicant and the sponsor had been in a long-standing relationship. However, this did not mean that the applicant and sponsor automatically become eligible to have the requirement that the applicant met the Schedule 3 criteria waived, solely on the basis that they had been in a relationship for two years or more. The Tribunal noted that the applicant had married the sponsor during a period when he was unlawfully in Australia and that regardless of the genuineness or not of the married relationship, the applicant had manipulated the circumstances in an attempt to achieve a positive outcome for himself so he could remain onshore.
At paragraph 27 of its decision, the Tribunal noted that the applicant has a child who still lives in China, aged 16, and other family members including his parents. The Tribunal was of the view the applicant would be able to avail himself of their support, thereby reducing any claim of financial or emotional hardship that may result from him having to travel offshore. In this regard, the Tribunal noted that the mother of the sponsor, who lives in China, gave evidence that she and her husband have a good relationship with the applicant. The sponsor’s employer and a long-time friend of the sponsor gave evidence about the genuineness of the relationship. The Tribunal noted however, that it was not required to make a finding as to the genuineness of the relationship.
At paragraph 29 of its decision, the Tribunal acknowledged that the applicant said the sponsor will suffer hardship without his emotional support and the sponsor gave evidence about this herself. The Tribunal concluded however, that spouses in genuine married relationships, should be able to withstand some hardship from time to time in their marriage, particularly where they have family and friends to support them, as this couple did.
At paragraph 33 of its decision, the Tribunal noted that the applicant claims that he and the sponsor are seeking In Vitro Fertilisation (“IVF”) advice. No information was provided that they were actively engaged in the IVF process yet. The Tribunal accepted that the sponsor has medical issues and has had treatment and surgery for gynaecological problems. The Tribunal accepted information that the applicant has been supportive of the sponsor both physically and emotionally during this time.
At paragraph 34 of its decision, the Tribunal noted evidence in a letter from Dr Lamb that the sponsor would benefit from falling pregnant. The Tribunal stated “that is a matter for the applicant and the sponsor to decide in whatever circumstances they find themselves’. The Tribunal found that whilst the sponsor has some reproductive health issues and still presents for monitoring of her health, this does not prevent her from working. The Tribunal found that the applicant overstated the role he plays or needs to play with regards to his wife health.
The Tribunal noted that the sponsor’s parents had travelled to Australia when she was ill. The Tribunal was not satisfied that the applicant was the only person who can care for the sponsor, should she require care again.
At paragraph 36 of its decision, the Tribunal concluded that there were no compelling reasons, in that there were no exceptional or unique circumstances as claimed by the applicant, for waiving the requirements the applicant meet the Schedule 3 of the Regulations criteria.
At paragraph 38 of its decision, the Tribunal noted it had considered all of the information, together with the applicant’s migration history and was of the view that the applicant had demonstrated a wilful and knowing disregard of the Department’s requirements regarding his visa status, particularly referring to the requirement that he depart Australia in 2010 and that he did not do so. In the Tribunal’s view the applicant manipulated the circumstances in an attempt to give rise to favourable compelling circumstances. The only genuine attempt the applicant made to regularise his visa status since 2010 was the lodgement of the Partner visa application while he was unlawfully onshore. Accordingly, the Tribunal determined that the applicant did not satisfy the criteria for the grant of the visa sought.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in an Initiating Application filed with the Court on 16 January 2017. They are as follows:
Ground One
The second respondent failed to comply with its obligation under s 348(1 )of the
Act to review the decision of the first respondent by failing to consider evidence
that was relevant to its decision to affirm the refusal of a subclass 820 Partner
visa to the applicant.
Particulars
a) The Tribunal at [34] acknowledged medical evidence that the applicant's sponsoring wife would benefit from falling pregnant because of her recent gynaecological problems but considered "that is a matter for the applicant and her sponsor to decide in whatever circumstances they find themselves".
b) In arriving at the above conclusion, the Tribunal failed to consider, or to appreciate:
i.that the medical evidence was also to the effect that the sponsor had been advised to fall pregnant as soon as possible due to her gynaecological condition, and
ii.that in order for the sponsor to fall pregnant, it was necessary that the sponsor and the applicant be in each other's presence.
Ground Two
Not pressed at hearing.
THE APPLICANT’S SUBMISSIONS
In relation to grounds 1(a) and (b) it was submitted that Ms Xu’s medical condition went beyond merely claiming that this serious condition existed and she needed the applicant to remain in Australia to provide her with support. Both of these claims were accepted and dealt with by the Tribunal at paragraphs 33 to 34 of its decision.
The core of the applicant’s contention was that, in order to protect Ms Xu health, and to a lesser degree, to achieve their desire to start a family, all attempts ought to be made for Ms Xu to conceive as soon as possible. This was expressly recommended and referred to in the letters of Dr Lam and Dr Huang. In order for Ms Xu to conceive, she needed to be in the same place as the applicant. It was submitted that judicial notice was not needed for the proposition that in order to become pregnant, both the male and female partner need to be in close personal contact.
It was submitted that this could not occur if the applicant was required to leave Australia for an indeterminate period of time. The only other alternative was for Ms Xu to travel to China with the applicant. It was submitted that the applicant’s solicitor gave good reasons why she could not move to China, namely the expense of medical treatment and her inability to remain in China for anything other than short stays.
It was submitted that the response of the Tribunal at paragraph 34 of its decision “that this is a matter for the applicant and the sponsor deciding whatever circumstances they find themselves”, does not appear to have given thought to the proposition that the only circumstances in which the applicant and Ms Xu might conceive was for the applicant to remain in Australia. This problem was not recognised or resolved by the Tribunal and amounts to a failure by the Tribunal to complete the task of considering and making findings on the evidence and submissions.
In relation to ground 1(c), it was submitted that the Tribunal simply wrong when at paragraphs 28 and 32 of its decision, it expressly stated that the evidence of the genuineness of the relationship between the applicant and Ms Xu was not relevant to a decision as to whether there were compelling reasons for not applying the Schedule 3 of the Regulations criteria as required by subclause 820.211(2)(d)(ii) of the Regulations.
In decisions subsequent to the Tribunal decision, such as Hassan v Minister for Immigration [2020] FCCA 2385 at [58]-[66] Judge Baird of this Court accepted the Minister’s submission that the genuineness of the relationship was not an irrelevant factor in assessing whether or not there were compelling reasons for the waiver of the Schedule 3 of the Regulations criteria.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one (a) and (b) it was submitted that the matters which a decision-maker is bound to consider, will be determined by the implicit and explicit terms of the statute. The taking into account of mandatory relevant considerations is distinct from the decision which the decision maker must make, as to whether or not he or she is satisfied that the reasons presented by the applicant are compelling and merit the waiving of the Schedule 3 criteria. Ultimately, the question is whether the circumstances as a whole, compel the decision-maker to exercise the discretion confirmed: (see; MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510 at [11]).
The construction of clause 820.211(2)(d)(ii) of the Regulations was explained by Griffiths J in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 at [54] and [56]. It was noted that the explanatory statement gave examples of matters of a “strongly compassionate” nature which include where there are Australian citizen children from the couple’s relationship, or the visa applicant and his or her sponsor and a long standing relationship which has been in existence for two years or more.
In relation to the medical evidence provided, it was clear that the applicant and the sponsor had not commenced IVF treatment. There was substantial evidence about the sponsor’s fertility issues. Clear evidence was given from Dr Huang that the sponsor should start the IVF process as soon as possible and that the sponsor “would benefit greatly from having her partner stay in Australia to enable the couple to conceive and have the applicant there to support her during the process”
It was submitted that the medical evidence did not indicate that it was medically necessary for the applicant to be in Australia in order for the IVF process to be undertaken but rather, his presence would be beneficial for the purposes of moral support to the sponsor during the process.
This was consistent with the applicant’s submissions to the Tribunal that if the applicant were forced to depart Australia, the sponsor would be forced to depart with him in order to conceive and, second, that the process was expensive and the sponsor needed the applicant’s financial physical and mental support.
It was submitted the evidence did not at any point indicate that it was necessary for the applicant and the sponsor to be in each other’s presence in order for the sponsor to conceive. The Tribunal on the other hand found that would be minimal financial disruption as the sponsor had a full-time job: (see; paragraph 29 of the Tribunal decision).
The Tribunal considered the submissions but was satisfied that the applicant was not the only person that could care for the sponsor, as her parents regularly travel to Australia. The Tribunal also considered the claims that the applicant had been the sponsor’s primary carer from 2012 to 2015 but that he was “overstating the role he plays or needs to play with regards to his wife’s health”: (see; paragraph 34 of the Tribunal decision).
In relation to ground 1(c) it was submitted that at paragraph 32 of its decision, the Tribunal did not find that the genuineness was not a relevant factor at all, rather, that it had considered it, but did not find it relevant in this case. It was clear that the Tribunal took the genuineness of the relationship as a given, and focussed on more specific matters. No explanation is given by the applicant as to why the genuineness of the relationship of itself constituted a compelling circumstance. The applicant’s other submissions focused on her medical problems and the need and desire for the couple to start a family. In that context it was open to the Tribunal to find the matter irrelevant.
In any event the Tribunal proceeded on the basis that the relationship was genuine. Had the Tribunal not made the alleged error (which was not conceded), it would not have made a difference. An error will only be material if it would have made a difference to the ultimate outcome: (see; PGSM v Minister for Home Affairs (2020) 382 ALR 195 at [140]). The applicant’s own reasons identified as being compelling were more specific and consistent with establishing hardship than a general submission that the relationship with the sponsor was genuine. There is no reason to believe a decision-maker would reason, as did the Tribunal, that there was no compelling reason due to the emotional, physical or financial reliance by the sponsor, no compelling reason due to the sponsor’s fertility issues, and no compelling reason during to the due to hardship the applicant, but that there was a compelling reason which rose simply from the genuineness of the relationship.
The Tribunal found that the sponsor would suffer hardship but that she should be able to withstand some hardship: (see; paragraph 29 of the Tribunal decision). It was submitted that the Tribunal plainly made the same finding with regard to hardship irrespective of whether or not it made a discrete and separate finding in relation to the genuineness of the relationship.
CONSIDERATION
It is well established that the Tribunal is not required to accept any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). The reasons of the Tribunal are not to be scrutinised with “an eye finely attuned to error”: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 604 at [46]). The onus of proof that a person meets the criteria for the grant of a visa lies with the applicant: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
It is common ground that the applicant was not the holder of a valid visa at the time of his application for a Partner visa. As a result, the applicant could not satisfy the criteria in Schedule 3 to the Regulations for the grant of a Partner visa. That being the case, the applicant needed to show compelling circumstances for the criteria to be waived. What is or is not compelling, is a matter for the Tribunal by evaluating the material presented. Subject to the conclusions being legally reasonable, the fact that a reviewing Court may have made a different decision on the available evidence, is not enough for the relief sought to be granted.
A fair reading of the entirety of the Tribunal decision indicates that the Tribunal accepted that the relationship between the applicant and the sponsor was genuine. The Tribunal acknowledged at paragraph 32 of its decision, that evidence was provided of the marriage of the parties for over one year and other evidence of the genuineness of the marriage had been provided. The Tribunal accepted evidence from the sponsor’s mother as to the care and assistance given by the applicant to the sponsor when unwell.
The Tribunal accepted evidence of the medical issues faced by the sponsor and that the applicant had been supportive emotionally and physically during and following surgery in 2016. The Tribunal also had extensive medical evidence before it, of the desire of the sponsor to fall pregnant and the benefit of having the applicant present with her to support her during any medical intervention to assist her to fall pregnant. Counsel for the applicant did not press the submission put in written submissions that the sponsor could only fall pregnant to the applicant if he was physically present in Australia. In the Court’s view, the Tribunal clearly considered the genuineness of the relationship but in the circumstances of this particular case, did not find it relevant, in that it weighed neither for nor against the applicant, in a way that required it to be taken into account.
The Tribunal preferred instead to discuss the matters that were specifically put to it for consideration as being compelling reasons which it set out in paragraph 20 of its decision. The Tribunal then set out other reasons that it proposed to consider at paragraph 21 of its decision which might not weigh in the applicant’s favour. The Court is satisfied that the decision was not made with any blindness to the fact that the applicant and the sponsor were in a genuine relationship, but rather, that there were other matters which needed to be considered which might be compelling one way or the other.
In relation to the comment complained of in particular 1(a) that the Tribunal considered in relation to the sponsors medical problems and falling pregnant, that it considered “this is a matter for the applicant and her sponsor to decide whatever circumstances they find themselves”, this reference clearly indicated that the Tribunal was aware that a finding which would result in the applicant having to depart Australia may present difficulties to the sponsor falling pregnant. The Court considers this comment as simply being that it was a matter for the sponsor to consider what options she might pursue, including staying in Australia and pursuing medical treatment on shore, or indeed travelling to China with the applicant and pursuing fertility treatment in China. The Court does not accept the assertion that the Tribunal failed to consider or appreciate the medical evidence that the sponsor had been advised to fall pregnant as soon as possible. Further, it was not physically necessary for the applicant to be present in Australia for the sponsor to undergo fertility treatment, provided that, he made appropriate arrangements prior to leaving to allow IVF, or other fertility treatment to take place in his absence.
Further, even if the Court is wrong in relation to the finding that the Tribunal did not properly consider the genuineness of the relationship, or indeed was required to make a specific finding as to it, the Court is of the view that a finding that the applicant and the sponsor were in a genuine relationship would not have made any difference to the overall outcome. In the overall mix of considerations, it was not a highly relevant matter which is indicated by the fact that it was not relied upon in the submissions put to the Tribunal was being compelling reasons outlined in paragraph 20 of the decision record. Ground one has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 13 July 2021
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