Shen v Minister for Home Affairs and Anor (No.2)
[2019] FCCA 1468
•31 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEN v MINISTER FOR HOME AFFAIRS & ANOR (No.2) | [2019] FCCA 1468 |
| Catchwords: MIGRATION – Application for remedies in relation to decision by Administrative Appeals Tribunal (Tribunal) affirming a decision to cancel a Partner visa – whether s.359A of the Migration Act 1958 (Cth) (Act) applied to information recorded in documents containing information covered by a certificate issued under s.375A of the Act in circumstances where the information is not identified – whether certificate invalid – whether the Tribunal took into account relationship between applicant and her child in determining whether Partner visa should be cancelled – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.101, 102, 103, 104, 105, 107, 108, 109, 359A, 476 |
| Cases cited: Shen v Minister for Home Affairs & Anor [2019] FCCA 538 |
| Applicant: | BEILIN SHEN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2209 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 23 May 2019 |
| Date of Last Submission: | 23 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter. |
| Counsel for the Respondents: | Mr R Scheelings |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2209 of 2018
| BEILIN SHEN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of China, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) to cancel a Subclass 801 (Spouse) visa (801 Partner visa) that had been granted to the applicant. The delegate cancelled the 801 Partner visa pursuant to s.109(1) of the Act.
I have already published reasons for judgment in this matter (earlier reasons) where I set out in some detail the circumstances that led to the delegate’s deciding to cancel the 801 Partner visa, the proceeding before the Tribunal, and the Tribunal’s reasons for being satisfied the applicant had failed to comply with s.101 and s.104 of the Act.[1] I do not propose to repeat in these reasons what I said in my earlier reasons, but it would be useful again to refer to the relevant statutory provisions, summarise by reference to my earlier reasons the events that led to the delegate deciding to cancel the 801 visa, and set out those elements of the Tribunal’s reasons to which I did not refer in my earlier reasons.
[1] Shen v Minister For Home Affairs & Anor [2019] FCCA 538
Statutory provisions
The delegate cancelled that 801 Partner visa pursuant to s.109(1) of the Act. The power to cancel a visa conferred by that subsection is engaged after:
a)the Minister considers that the holder of a visa has not complied with s.101, s.102, s.103, s.104, s.105, or s.107(2) of the Act;
b)the Minister gives to the visa holder a notice under s.107(1) of the Act providing, among other things, particulars of the possible non-compliance; and
c)the Minister considers, as required by s.108 of the Act, any response the visa holder may give to a notice issued under s.107, and decides there was non-compliance by the visa holder in the way described in the notice issued under s.107 of the Act.
In these circumstances, s.109(1) of the Act provides as follows:
The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder for a visa; and
(b)considering any response to the notice about the non compliance given in a way required by section 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
The Migration Regulations 1994 (Cth) (Regulations) have prescribed circumstances for the purpose of s.109(1)(c) of the Act, and these are to be found in reg.2.41:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Background
The background to the delegate’s cancellation of the applicant’s 801 Partner visa, as set out in my earlier reasons, may be summarised as follows:
a)On 10 August 2010 the applicant applied for a combined UK/BS subclass 820/821 partner visa.[2]
b)On 18 July 2012, in response to a request made on 28 May 2012, the applicant provided to what is now known as the Department of Home Affairs (Department) evidence of cohabitation with the sponsor.[3]
c)On 24 September 2012 the applicant was granted a 801 Partner visa.[4]
d)By notice dated 27 July 2017 (Notice) a delegate of the Minister gave to the applicant a notice under s.107 of the Act stating that the delegate considered there had been non-compliance with s.101 and s.104 of the Act. The Notice stated that on 18 July 2012, contrary to s.101(b) of the Act, the applicant provided to the Department incorrect information, namely, that she was still in a loving and genuine relationship with the sponsor in circumstances where the Family Law Court had made a divorce order on 5 May 2013 which meant that the applicant and the sponsor must have ceased cohabitating before 12 July 2012, being the day on which the applicant provided information that stated she and the sponsor were in a loving and genuine relationship.[5] The Notice also stated that, contrary to s.104 of the Act, the applicant failed to inform the Department of a change in circumstances that rendered incorrect an answer the applicant had given in the form by which she applied for the 801 Partner visa, that change of circumstances being that the applicant and the sponsor had separated.[6]
e)The applicant responded to the Notice by providing a statutory declaration stating that she had complied with s.101 and s.104 of the Act.[7]
f)On 14 September 2017 the delegate cancelled the 801 Partner visa.
[2] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [14]
[3] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [15]
[4] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [15]
[5] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [17]
[6] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [18]
[7] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [19]
Before the Tribunal
In my earlier reasons I described an aspect of the hearing before the Tribunal. Relevant to one of the grounds on which the applicant relies, and in relation to which the applicant made submissions to me, is what was said about the applicant’s child and the relationship between the applicant and her child. The transcript of the hearing before the Tribunal is in evidence before me,[8] and I have read the transcript for the purpose of identifying the occasions on which something was said about the applicant’s child and her relationship with him.
[8] The transcript is annexed to the affidavit of S Hu affirmed 29 November 2018.
The first reference in the transcript to the applicant’s child occurs when the Tribunal asked the applicant about the circumstances in which information was recorded in a form titled “Application for Divorce”.[9] That form records there is one child to the marriage; the child was born in September 2010; the child is being looked after in China by grandparents and will return to Australia in May or June 2013; the father drives the child to the mother’s place at 10 am every Saturday and will pick him up at 6.30 pm every Sunday; the father takes care of the child financially and will provide everything; and the child will be enrolled at a particular child care centre after the child returns to Australia. The Tribunal referred to the form having “information about your arrangements for the child”, and asked the applicant how that information came to be recorded on the form. The applicant (speaking through an interpreter) said:[10]
So before the divorce applicant (indistinct) my ex-partner talked with me about the arrangements of the child and he told something to my previous representative and the representative then asked me if the arrangements about the child would be the same as your partner has told me and I said “Yes”. And then he said “Okay, I know that and I will fill out that out for you.
[9] CB92-98
[10] T5.30
After the Tribunal expressed some doubts about the applicant’s evidence, the applicant said the following:[11]
So number 1, my previous representative had some knowledge of my family because of the relationship between him and my ex-partner and me, myself. And number 2, my representative verified most of the information regarding the child as well as some other matters with my ex-partner. He just asked me “Do you agree to the arrangement that your partner has organised for the child, like fostering or something else?” And I just said “Yes, I agree”. And he said “Okay, if you agree I will just check with your ex-partner and I will fill out everything”.
[11] T6.10
The second reference to the applicant’s child arose in relation to questions the Tribunal asked about whether the applicant has much contact with her ex-husband:[12]
[12] T13.10-T13.45
SENIOR MEMBER: Do you have much contact with your ex-husband?
INTERPRETER: Sorry?
SENIOR MEMBER: Do you have much contact with your ex-husband?
INTERPRETER: No. No, no contact.
SENIOR MEMBER: No contact at all?
INTERPRETER: Yes, I used to contact him especially immediately after the divorce but I haven’t contact [sic] him recently for maybe one year because of this incident.
SENIOR MEMBER: Are you getting child support?
INTERPRETER: The child has been with him and sometime I visit to them.
SENIOR MEMBER: So your child is in Australia?
INTERPRETER: Yes.
SENIOR MEMBER: I thought you sent your child to China, has he come back?
INTERPRETER: He is in Australia attending school.
SENIOR MEMBER: Okay. So you visit your child and you see your ex-husband when you visit your child?
INTERPRETER: Not really. My ex-husband works as a bus driver, so I would visit my child when he is absent.
The third occasion on which the applicant referred to her child is when she stated she got to know her ex-partner in 2005, they had a very long relationship, and “we got married in 2010 when we had a child”.[13] The applicant later repeated this when responding to the Tribunal’s concern that the applicant and sponsor separated only three months after the applicant was granted the 801 Partner visa.[14]
[13] T17.30
[14] T20.15; T22.35
The fourth occasion there was a reference to the child was the Tribunal asked the applicant whether she wanted to say anything about her current circumstances:[15]
[15] T26.45-T27.10
SENIOR MEMBER: Do you want to say anything about your current circumstances?
INTERPRETER: No
SENIOR MEMBER: Ms Shen, it might actually be helpful if I know something about your current circumstances when I decide whether or not your visa should be cancelled.
INTERPRETER: So, I have been in Australia for over 10 years now, and it has been a long period for me to adjust to the life here in the Australian community. I got married here and I gave birth to a child, and if my visa was – if my visa is finally cancelled based on something before 10 years ago, and it was based on some form that was submitted without my knowledge, I believe it will a maladjustment to me, and I wish you can take into consideration.
The fifth occasion occurred after the applicant said she had nothing further to say about her personal circumstances:[16]
[16] T29.10
SENIOR MEMBER: When did your child come back to Australia?
INTERPRETER: My child was born in Australia, and he left Australia – and he went back to China for over six months, no more than one year before he got back and stayed here now.
SENIOR MEMBER: So he is what – how old is he now?
INTERPRETER: Eight.
SENIOR MEMBER: All right. We’ll come back to your child in a moment.
The sixth and most exhaustive discussion relating to the applicant’s child occurred after the Tribunal said that it had to consider whether Australia’s international obligations might be breached if the 801 Partner visa is cancelled. The Tribunal referred to two international obligations, one being the obligation to protect a person from persecution, and the other the Tribunal described as relating to the “best interests of the child”. The applicant gave evidence that included the following:[17]
[17] T31.45-33.15
SENIOR MEMBER: . . . . So, what do you think are the best interests of your child?
INTERPRETER: So if my visa is cancelled, that means I won’t be able to visit my child regularly, and that will influence my child, definitely.
SENIOR MEMBER: How often do you see your child now?
INTERPRETER: It depends, but normally once or twice within one week.
SENIOR MEMBER: So do you physically go and visit him at his father’s house?
INTERPRETER: Yes, I visit him. His grandparents are with him often.
SENIOR MEMBER: So why did you make the decision to leave your child with . . . your husband, or with his parents, and not with you?
INTERPRETER: So at that point of time the visa of his father happened to be granted, while my parents haven’t been granted a visa yet, and the second reason was we had quite a lot of arguments over the guardianship of the child, and it happened that I was suffering from depression and having to visit the doctor and receive medical treatment, and so I was not fit enough, not in a position to look after the child at that time, and also my ex-partner purchased a property of his own, he hoped that the child would be able to stay with him outside for whatever reason, so he didn’t impose any conditions on my visit.
SENIOR MEMBER: Okay, and if your visa is cancelled what do you think is going to happen? Do you think you might try to come back to Australia? Do you think your husband might take the child to China to see you? What do you think will happen?
INTERPRETER: Yes, the child is four [sic] years old, and my ex-partner has to work very hard to support the child as well as his parents, and also he has pressure from his mortgage. Normally he works even without taking his annual leave, so I believe it’s impossible for him to take the child to visit me back in China, and also considering the poor relationship between my ex-partner and me, I also believe this is not a – this won’t be the case.
SENIOR MEMBER: Well, everybody works and they still manage to travel. There’s no reason why the grandparents, I guess, take him to China if that’s the case, if your husband would refuse to do it, and presumably you can still communicate with your child as frequently as you like by, I don’t know, Skype or QQ, or whatever you do.
INTERPRETER: Yes, so my current address is only 20 minutes’ walk from my ex-partner’s location, so it’s very convenient for me to visit my child if I want to, so I believe it’s quite different – a physical visit – this kind of physical visit will be quite different from chat over QQ or whatever social media we may have, because one is physical while the other is virtual, so there’s nothing to be compared between these two. In addition, my – the father of my ex-partner is in very poor health himself. He is – he has been diagnosed with potentially renal cancer, so he – it’s not possible for him to take the child back to visit me if I’m – my visa is cancelled and I have to get back to China.
SENIOR MEMBER: So if you can visit your child as frequently as you like and you live nearby – I think you’ve mentioned before that you only see him twice a week – why not see him more often than that?
INTERPRETER: So the major reason is the relationship between me and their family. So his – I mean, the father of my ex-partner normally stays at home, and in addition I have another child from my current marriage, and I have to take the child to the swimming class on two occasions a week, so I cannot visit my other child during the two – during these two days, as well as some other issues as well, but I will keep visiting my child every week.
Tribunal’s reasons
The Tribunal found the applicant was not in a genuine spousal relationship with the sponsor, at least by the time she was granted the 801 Partner visa; that the answers the applicant gave in support of her 801 Partner visa, when she claimed to have been in a committed relationship with the sponsor, were incorrect; that the applicant’s circumstances had changed once she had separated from the sponsor so that an answer she had given in her application for a 801 Partner visa became incorrect; and, for these reasons, the Tribunal was satisfied there was non-compliance with s.101 and s.104 of the Act by the applicant in the way described in the Notice. In my earlier reasons I set out the reasons the Tribunal gave for making these findings,[18] and it will be unnecessary to repeat here those reasons.
[18] Shen v Minister For Home Affairs & Anor [2019] FCCA 538, [27]-[31]
Having found there had been non-compliance with s.101 and s.104 of the Act, the Tribunal considered whether the 801 Partner visa should be cancelled; and in doing so the Tribunal referred to the matters prescribed by reg.2.41of the Regulations. Thus, the Tribunal:
a)identified the “correct information” (reg.2.41(a)), namely, that it formed the view the applicant separated from her husband, and the relationship ended before the applicant was granted the 801 Partner visa;[19]
b)found that the matter identified in reg.2.41(b) of the Regulations, namely, “the content of the genuine document”, was not relevant to the applicant’s case;[20]
c)considered whether the decision to grant the 801 Partner visa was based wholly or partly on incorrect information (reg.2.41(c)), and found that the decision was so based;[21]
d)considered the circumstances in which the non-compliance occurred (reg.2.41(d));[22]
e)considered whether anything adverse is known of the applicant’s subsequent behaviour (reg.2.41(f)), and noted it was unaware of the applicant’s subsequent behaviour concerning her obligations;[23]
f)considered whether there were any other instances of non-compliance (reg.2.41(g)), noting it was unaware of any other instances of non-compliance by the applicant;[24]
g)identified and considered the time that had elapsed after non-compliance (reg.2.41(h)), noting that more than five years had passed;[25]
h)considered whether the applicant breached the law after non-compliance (reg.2.41(j)), noting it was unaware of any breaches of the law;[26] and
i)considered contributions the applicant made to the community (reg.2.41(k)), noting the applicant claimed she was sponsoring a child overseas, and that when she worked she paid her tax.[27]
[19] CB264, [37]
[20] CB264, [38]
[21] CB264, [39]
[22] CB264, [40]
[23] CB265, [44]
[24] CB265, [45]
[25] CB265, [46]
[26] CB265, [47]
[27] CB265, [48]
The Tribunal also considered the present circumstances of the applicant as required by reg.2.41(f) of the Regulations. The Tribunal referred to the applicant having told the Tribunal she had been in Australia for ten years; that she is used to life in Australia; that she has a child in Australia; and that it would cause the applicant hardship if her visa is cancelled. The Tribunal accepted that evidence. The Tribunal also noted that the applicant’s child lives in Australia, and that the applicant visits the child sometimes.[28]
[28] CB264, [41], [42]
Having considered the matters identified in reg.2.41 of the Regulations, the Tribunal noted that although the Tribunal was required to consider those matters, they do not represent an exhaustive statement of the circumstances that might properly be considered in any given case. The Tribunal said it might also have regard to lawful government policy; and here the Tribunal identified as lawful government policy that which is set out in the “Department’s procedural Advice Manual . . . PAM 3 ‘General visa cancellation power’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters”.[29] The Tribunal then considered whether any “international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interest of the child”.[30]
[29] CB265, [49]
[30] CB266, heading above [53]
The applicant first observed the applicant did not claim, and there was nothing to suggest, that Australia’s protection obligations would arise if the 801 Partner visa were cancelled. The Tribunal then referred to the evidence the applicant gave about her child’s circumstances, and her contact with her child. The Tribunal said:[31]
The applicant’s evidence to the Tribunal is that her child lives with his father and paternal grandparents. The applicant told the Tribunal that she visits the child at least twice a week and if her visa is cancelled, she would be unable to see the child as frequently. The applicant said that she is presently located near the child and can visit him as often as she likes. If she has to leave Australia, it would not be the same to have electronic contact and she does not believe if she leaves Australia, her ex-husband or his parents would bring him to China to see him. The Tribunal is mindful that there is very little evidence before [the] Tribunal concerning the applicant’s relationship with her child or the nature of that relationship and, as noted above, there is no evidence regarding the child’s living arrangements and who the child may be living with. There is little evidence that the applicant has any contact with the child. There is no evidence of any parental bond between the applicant and the child. There is no evidence of any relevant court orders or other parental responsibilities towards the child. The Tribunal is not satisfied on the evidence before it there is a meaningful relationship between the applicant and the child.
[31] CB266, [54]
After referring to and considering the applicant’s evidence that she also has a step-child from a present relationship,[32] and summarising the evidence it has accepted,[33] the Tribunal concluded as follows:[34]
Against these considerations, the Tribunal has formed the view that the applicant has been untruthful in her dealings with the Department and her explanations to the Tribunal. The Tribunal found that Australia’s international obligations would not be breached as a result of the cancellation. [The] Tribunal places significant weight on the fact that the applicant’s relationship with [the sponsor] was central to her eligibility to be granted the Partner visa and as there is no suggestion that the applicant relied on the child exception in seeking that visa, the decision to grant the visa was based on the applicant’s relationship with [the sponsor] which, in the Tribunal’s view, ended before the visa was granted. In the tribunal’s view, that outweighs other considerations.
[32] CB266, [55]
[33] CB266, [57]
[34] CB266, [58]
Grounds of application
The applicant relies on an amended application which contains the following two grounds of application:
1.The second respondent failed to comply with its obligation under s 359A of the Act to give to the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
Particulars
(a)The second respondent failed to provide the applicant with particulars of information set out in documents referred to in a certificate purportedly issued by the first respondent under s 375A of the Act on 13 October 2017 (the s 375A certificate), such documents being at folios 1-8, 11-65 and 93-99 of an unidentified file number.
(b)The second respondent erroneously relied on the s 375A certificate when deciding not to provide the particulars of information referred to above because the s 375A certificate was invalid since it failed to identify any file number to which the identified folios related.
2.The second respondent failed to carry out its task to review the first respondent’s decision under s 348 of the Act, by failing to take account of or make findings on a critical issue.
Particulars
(a)The second respondent, at [54], purported to take account of international family unity principles and the best interests of the child when deciding whether to affirm the cancellation of the applicant’s visa.
(b)When considering the above matters, the second respondent failed to take account of, or make findings on, the relevance of the biological relationship between the applicant and her child.
The applicant was not legally represented at the hearing before me. I therefore explained to her the nature of the hearing and the procedure that was to be followed. The applicant then made submissions. After a short adjournment it became apparent the applicant was not aware of the grounds that were stated in the amended application. The grounds were interpreted to the applicant in my presence, and I invited the applicant to make submissions in relation to the grounds. The applicant made no submissions in relation to ground 1. She did, however, make submissions in relation to ground 2. Her submissions repeated in substance the submissions she made to me before I drew the applicant’s attention to the grounds of application, and these were to the effect that the Tribunal failed to take or adequately take into account the fact that she has a child in Australia.
In the remainder of these reasons I will consider the grounds stated in the amended application and the submissions the applicant made to me at the hearing.
Ground 1
Ground 1 makes two claims. The first, which is stated in paragraph (a) of the particulars to ground 1, is that the Tribunal failed to comply with its obligations under s.359A of the Act because the Tribunal failed to provide the applicant with particulars of information contained in documents the ground does not describe other than by reference to folio numbers. The difficulty with this claim is that, although it identifies the media which it is said records information, namely documents that bear particular folio numbers, it does not identify the information that is recorded on those documents. It is therefore not possible to determine the information it is claimed the Tribunal “considered would be the reason or part of the reason for affirming the decision under review” which engaged the application of s.359A(1) and consequently obliged the Tribunal to comply with the requirements of that subsection. This part of ground 1, therefore, fails.
The second claim ground 1 makes is that the 375A Certificate (which I reproduced in paragraph 21 of my earlier reasons) itself is invalid because it does not identify the file number to which the documents the 375A Certificate identifies by folio numbers belong. The ground does not explain how this omission renders the 375A Certificate invalid. It is not suggested, for example, that the omission rendered the 375A Certificate misleading, or that it made it impossible or difficult to identify the documents to which the 375A Certificate was intended to apply. Further, as the applicant stated in the witness statement to which I refer in paragraph 25 of my earlier reasons, the Tribunal provided to the applicant the 375A Certificate. The applicant did not make any submission about the 375A Certificate omitting details of the file to which the documents described by folio number belonged. This part of ground 1, therefore, also fails.
Ground 2
Ground 2 is directed to paragraph 54 of the Tribunal’s reasons which I have reproduced in paragraph 19 of these reasons. Ground 2 claims the Tribunal purported to take into account “international unity principles and the best interests of the child”, but in so doing the Tribunal failed to take account of, or make findings about, the relevance of the applicant’s biological relationship between the applicant and her child.
This ground cannot be made out. The Tribunal accepted the applicant was the mother of her child; and there was nothing to suggest the applicant claimed, or the Tribunal formed the view, that the applicant was not the biological mother of the child. The Tribunal explored with the applicant the nature of her relationship with the child and what in the applicant’s eyes constituted the best interests of her child if the 801 Partner visa were cancelled; and the Tribunal made express findings about these matters. It found it was “not satisfied on the evidence that there is a meaningful relationship between the applicant and the child”. That finding was reasonably open to the Tribunal on the evidence that was before it and for the reasons it gave.
Applicant’s submissions
At the hearing before me the applicant said that the main thing she wanted to talk about “is the relationship between me and my son”. The applicant submitted the Tribunal failed to consider the mother and son relationship between the applicant and her child. The applicant said she goes to her child’s house every day to see him, and she talks to him about his schooling; and that if her visa is cancelled she will be unable to see him.[35] The applicant also urged me to order that the sponsor attend court to prove that their relationship was genuine. The applicant submitted she dated her former husband for four years, and the applicant and sponsor then married after which they had their son. The applicant also submitted that the Tribunal failed to consider “what will happen to the child if he doesn’t have a mother for all his future life”.
[35] That does not reflect the evidence the applicant gave at the hearing before the Tribunal. The applicant said she visited her child about twice a week. She did not say that she talked with her child about school.
I do not accept the applicant’s submissions that the Tribunal did not consider the nature of her relationship with her child. Nor can it be said that the Tribunal did not properly consider the nature of the applicant’s relationship with her child. I have referred in some detail to the occasions on which the Tribunal asked the applicant questions about the applicant’s child and about what the applicant considered to be the best interests of her child; and I have also set out the findings the Tribunal made in relation to the applicant’s relationship with her child, both from the point of view of the applicant’s present circumstances, and also by reference to the best interests of the applicant’s child. The Tribunal’s findings were reasonably open to it on the evidence that was before it, and for the reasons it gave.
It is true the Tribunal did not specifically consider the question what would happen to the child “if he doesn’t have a mother for all his future life”. But it could not reasonably be said that the applicant’s cancellation of the 801 Partner visa would have that consequence. The question the Tribunal addressed is the impact cancellation of the Partner 801 visa would have in relation to the interests of the applicant‘s child and, to the extent any impact could reasonably be assessed, whether such impact would be consistent with the best interests of the child. As I have already noted, the Tribunal found it was “not satisfied on the evidence that there is a meaningful relationship between the applicant and the child”, and it was on the basis of that finding that the applicant considered the impact cancellation of the 801 Partner visa would have on the interests of the applicant’s child. Thus, the Tribunal made no jurisdictional error by not considering the question of what would happen to the applicant’s child “if he doesn’t have a mother for all his future life”.
Conclusion and disposition
The applicant has not succeeded on the grounds stated in the amended application or in the submissions she made at the hearing before me. I propose, therefore, to order that the application be dismissed.
I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 31 May 2019
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