Shen v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 748
Federal Circuit and Family Court of Australia
(DIVISION 2)
Shen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 748
File number(s): MLG 191 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 8 September 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of China – refusal of Partner (Temporary) (Class UK) visa – non-disclosure certificate – where non-disclosed information excluded from consideration – voluminous affidavit material filed – bare assertion of error – whether irrelevant matters considered – whether relevant matters not considered – whether bias – whether fraud on the Tribunal - whether impermissible merits review – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 5, ss 5F, 65, 359AA, 375A, 476
Migration Regulations 1994 (Cth) regs 1.15A, 2.03A, Sch 2, cll 820.211, 820.221
Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584
Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; (2000) 75 ALJR 277; (2000) 63 ALD 577
FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Fobizi v Minister for Immigration & Anor [2017] FCCA 1738; (2017) 323 FLR 226
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398; (2016) 161 ALD 386
He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560
Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788
Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 80 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Wuv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091; (2021) 358 FLR 269
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Zentai v O’Connor and Others (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 4 February 2022 Place: Perth Applicant: In person by phone via CISCO Webex with the assistance of a Mandarin interpreter Counsel for the First Respondent: Mr J Papalia Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 191 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YI SHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
8 September 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 30 January 2017 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
This is an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) filed on 30 January 2017, and seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 12 January 2017 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse the applicant, Ms Yi Shen (“Ms Shen”) a Partner (Temporary) (class UK) (subclass 820) visa (“Partner Visa”) under s 65 of the Migration Act.
Ms Shen is married to Mr Seifollah Afrasaibi (“Sponsor”): CB 72-99.
The Judicial Review Application contains three grounds of review. The grounds of review are set out at [12] below.
The Court has before it the following materials:
(a)the Court Book (“CB”) numbering 578 pages which was marked as “Exhibit 1”;
(b)Ms Shen’s affidavit affirmed 30 January 2017 (“Ms Shen’s First Affidavit”) annexing the Delegate’s Decision and Tribunal Decision;
(c)Ms Shen’s affidavit affirmed 17 February 2017 (“Ms Shen’s Second Affidavit”) in which she says a migrant agent lodged the Partner Visa in “wrongly manner with the wrong time in wrong place”, and that “[l]ater an anonymous letter, no name, no detail caused them to not issue” the Partner Visa;
(d)Ms Shen’s Second Affidavit has the following annexures (“ANX”):
(i)ANX 1: a written submission regarding Ms Shen’s and the Sponsor’s relationship history;
(ii)ANX 2: the invoice for the Tribunal review application;
(iii)ANX 3: the Sponsor’s certificate of divorce relating to the Sponsor’s previous marriage;
(iv)ANX 4: a letter from the Victorian Department of Justice regarding Ms Shen and the Sponsor’s marriage arrangements;
(v)ANX 5: Ms Shen’s Bridging A (class WA) visa grant notice;
(vi)ANX 6: the Department’s letter of acknowledgment of the Partner Visa application;
(vii)ANX 7: letter to the Department from Interise Legal, previously appointed as Ms Shen’s migration agents;
(viii)ANX 8: a Departmental request for more information concerning the Partner Visa application:
(ix)ANX 9: Ms Shen and the Sponsor’s Certificate of Marriage dated 23 June 2014;
(x)ANX 10: Ms Shen and the Sponsor’s Marriage Certificate;
(xi)ANX 11: the Delegate’s Decision;
(xii)ANX 12: the Department’s letter accompanying the Delegate’s Decision;
(xiii)ANX 13: Ms Shen’s written submission to the Department urging a review of the Delegate’s Decision;
(xiv)ANX14: the receipt for payment for the Tribunal review application;
(xv)ANX 15: the Tribunal Decision;
(xvi)ANX 16: the Court’s notification dated 30 January 2017 of filing of the Judicial Review Application and listing for a directions hearing on 2 August 2017; and
(xvii)ANX 17: a patient health summary for the Sponsor issued by a Dr Xiong Tan;
(e)Ms Shen’s written submissions filed 15 September 2017 (“Ms Shen’s Submissions”) which contains a lengthy narrative account and observations concerning her relationship with the Sponsor, and submissions expressing concerns and complaints about the Tribunal Decision, as well as a number of appendices as follows:
(i)Appendix A – a narrative account of the Partner Visa application and interactions with her migration agent concerning that application;
(ii)Appendix B – a copy of the Delegate’s Decision;
(iii)Appendix C – a copy of the Tribunal Decision;
(iv)Appendix D – a letter to the Tribunal from the Sponsor about the Tribunal Decision, which is in the nature of a lengthy narrative account of the circumstances of the relationship between the Sponsor and Ms Chen and submissions in reply (on a paragraph by paragraph basis) to the Tribunal Decision;
(v)Appendix E – the Sponsor’s certificate of divorce relating to the Sponsor’s previous marriage;
(vi)Appendices F and G – what appears to be a draft undated, unsigned and not witnessed (and perhaps partial) copy of the Sponsor’s last will and testament;
(vii)Appendix H – an undated and not witnessed, but signed, statement of support as to the Sponsor’s marriage to Ms Shen from the Sponsor’s daughter;
(viii)Appendix I – an email dated 24 July 2017 (thus post-dating the Tribunal Decision) from the Sponsor’s son expressing his support for the Sponsor’s marriage to Ms Shen;
(ix)Appendices J and L (there is no Appendix K) – statements as to the nature of the relationship from a neighbour and a local pastor;
(f)the Sponsor’s “Affidavit of Support” dated 12 July 2021 (“Sponsor’s First Affidavit”) sets out a narrative account and observations concerning the Sponsor’s relationship with Ms Shen, and the following annexures:
(i)ANX 1: email from the Chambers of the presiding Judge to Ms Shen advising of a directions hearing on 23 July 2021;
(ii)ANX 2: scans of business cards of the Sponsor, and Yang Chen of Cliffords Lawyers & Migration Agents;
(iii)ANX 3: the Sponsor’s certificate of divorce relating to the Sponsor’s previous marriage;
(iv)ANX 4: a letter from the Victorian Department of Justice regarding Ms Shen and the Sponsor’s marriage arrangements;
(v)ANX 5: the Sponsor’s Victorian parking permit for people with a disability; and
(vi)ANX 6: uncaptioned photographs of Ms Shen and the Sponsor, their home and artwork painted by Ms Shen;
(g)the Sponsor’s affidavit dated 15 July 2021 (“Sponsor’s Second Affidavit”) again sets out a narrative account of the circumstances of the Sponsor’s relationship with Ms Shen and the following annexures:
(i)ANX 1: a letter from the Victorian Department of Justice regarding Ms Shen and the Sponsor’s marriage arrangements;
(ii)ANX 2: the Sponsor’s certificate of divorce relating to the Sponsor’s previous marriage;
(iii)ANX 3: email regarding Ms Shen’s Bridging A (class WA) visa grant notice;
(iv)ANX 4: uncaptioned photographs of Ms Shen and the Sponsor, their home and artwork painted by Ms Shen;
(v)ANX 5: Ms Shen and the Sponsor’s Certificate of Marriage dated 23 June 2014;
(vi)ANX 6: the Sponsor’s Victorian parking permit for people with a disability; and
(vii)ANX 7: scan of the Sponsor’s business card;
(h)the Sponsor’s affidavit dated 2 September 2021 (“Sponsor’s Third Affidavit”) again sets out a narrative account of the circumstances of the Sponsor’s relationship with Ms Shen and the following annexures:
(i)ANX 1: a letter from the Victorian Department of Justice regarding Ms Shen and the Sponsor’s marriage arrangements;
(ii)ANX 2: the Sponsor’s certificate of divorce relating to the Sponsor’s previous marriage;
(iii)ANX 3: an email regarding Ms Shen’s Bridging A (class WA) visa grant notice;
(iv)ANX 4: one captioned and otherwise uncaptioned photographs of Ms Shen and the Sponsor, their home and artwork painted by Ms Shen,
(v)ANX 5: Ms Shen and the Sponsor’s Certificate of Marriage dated 23 June 2014; and
(vi)ANX 6: the Sponsor’s Victorian parking permit for people with a disability;
(i)the Sponsor’s affidavit dated 10 December 2021 (“Sponsor’s Fourth Affidavit”) again sets out a narrative account of the circumstances of the Sponsor’s relationship with Ms Shen and the following annexures:
(i)ANX 1: a letter from the Victorian Department of Justice regarding Ms Shen and the Sponsor’s marriage arrangements;
(ii)ANX 2: the Sponsor’s certificate of divorce relating to the Sponsor’s previous marriage;
(iii)ANX 3: an email regarding Ms Shen’s Bridging A (class WA) visa grant notice now captioned as follows: “a fake email address which was not valid by the law firm code of contact [scil. conduct]”
(iv)ANX 4: one captioned and otherwise uncaptioned photographs of Ms Shen and the Sponsor, their home and artwork painted by Ms Shen;
(v)ANX 5: Ms Shen and the Sponsor’s Certificate of Marriage dated 23 June 2014; and
(vi)ANX 6: the Sponsor’s Victorian parking permit for people with a disability;
(j)the Minister’s written submissions filed 21 January 2022 (“Minister’s Submissions”);
(k)the Sponsor’s affidavit (but which are actually submissions) in reply to the Minister’s Submissions dated 27 January 2022 (“Sponsor’s First Submissions”);
(l)the Sponsor’s written submissions dated 2 February 2022 (“Sponsor’s Second Submissions”); and
(m)the transcript of the hearing on 4 February 2022 (“Transcript”).
At hearing the Court indicated that the affidavits filed on behalf of Ms Shen would be read subject to relevance, and further that any affidavit material that might be inadmissible but which might be considered submissions would be so considered, the Minister concurring in the proposed course.
Background
The relevant background to the Judicial Review Application is as follows:
(a)Ms Shen is a citizen of China born in 1963: CB 1;
(b)on 30 April 2014 Ms Shen applied to what was then the Department of Immigration and Border Protection, now the Department of Home Affairs (“Department”) for the Partner Visa: CB 72-99;
(c)from 30 April 2014 Ms Shen provided the Department with evidence of her arrangements for marriage with the Sponsor: CB 104, and on 15 August 2014, Ms Shen and the Sponsor’s lawyer provided the Department with additional documentation in support of the Partner Visa: CB 105-198;
(d)on 21 May 2015 the Delegate’s Decision to refuse the Partner Visa was made: CB 256-283, on the basis that Ms Shen did not satisfy cl 820.211 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 256-283;
(e)on 5 June 2015 Ms Shen sought review of the Delegate’s Decision by the then Migration Review Tribunal: CB 300-313;
(f)
on 5 August 2016 the Tribunal invited Ms Shen to appear at a Tribunal hearing
(“First Tribunal Hearing”): CB 322-325;
(g)on 25 August 2016 at the First Tribunal Hearing Ms Shen appeared with her representative, the assistance of a Mandarin interpreter, along with the Sponsor, and several witnesses. The First Tribunal Hearing went for over two hours: CB 373-376;
(h)on 7 September 2016 Ms Shen and the Sponsor sent additional documentation to the Tribunal as requested by the Tribunal: CB 381-437;
(i)on 11 October 2016 the Department provided the Tribunal with an anonymous allegation as to the genuineness of Ms Shen and the Sponsor’s relationship, provided under cover of a certificate issued under s 375A(1) of the Migration Act (“375A Certificate”) by a delegate of the Department on 7 October 2016: CB 439-442;
(j)on 4 November 2016 the Tribunal contacted Ms Shen’s lawyer with an invitation for Ms Shen to attend a further hearing on 16 November 2016 (“Second Tribunal Hearing”): CB 454-457. The Tribunal received from her lawyer Ms Shen’s consent to a shortened notification period of the Second Tribunal Hearing: CB 452-453;
(k)on 16 November 2016 Ms Shen and the Sponsor attended the Second Tribunal Hearing, with the assistance of a Mandarin interpreter for Ms Shen. The Second Tribunal Hearing went for just over half an hour: CB 461-464; and
(l)on 17 November 2016 the Sponsor provided to the Tribunal a written response in relation to the 375A Certificate: CB 465-471.
Tribunal decision
On 12 January 2017 the Tribunal Decision was to affirm the Delegate’s Decision: CB 476-490.
In the Tribunal Decision the Tribunal:
(a)as to the 375A Certificate:
(i)found that Ms Shen and the Sponsor’s rights under s 359AA of the Migration Act overrode the need to keep the substance of the information the subject of the 375A Certificate from them, so long as the identity of the informant was kept anonymous: CB 478-479 at [12];
(ii)recorded that the substance of the information was put to Ms Shen and the Sponsor at the Second Tribunal Hearing for comment, but that as the information did not contain sufficient detail for the Tribunal to determine whether it was credible, and as the Tribunal accepted that the information may have been provided maliciously, the Tribunal excluded the information from its deliberations completely: CB 478-479 at [14];
(iii)found that it was unable to be satisfied that Ms Shen and the Sponsor were in a genuine and continuing relationship based on the Tribunal’s concerns about the inception and development of the relationship, and the Tribunal found that:
(A)claims about Ms Shen and the Sponsor having met on a professional Chinese dating site, and having chatted online and then over Skype using translation software because Ms Shen spoke little English and the Sponsor spoke no Mandarin, to be vague and unconvincing. The Tribunal was unable to discern, in the face of limited evidence, how they came to a mutual decision to get to know each other given their different backgrounds because Ms Shen is a Chinese Christian and the Sponsor is an Iranian Muslim: CB 479 at [17]-[20];
(B)the claimed rapidity with which Ms Shen and the Sponsor seemingly “there and then” entered into a de facto relationship after Ms Shen’s arrival in Australia: CB 480 at [24], after only being able to communicate previously using translational software, the functionality of which the Tribunal doubted in relation to its application to personal relations: CB 479 at [19], “casts further doubts on the narrative of the relationship” and whether it was genuine and continuing: CB 480 at [24]; and
(C)Ms Shen’s use of a multiple entry visitor visa to facilitate her relationship with the Sponsor, and the fact that she had worked in breach of the visitor visa’s conditions, also went to her credibility: CB 479-480 at [21]-[26];
(b)noted that Ms Shen and her migration agent appeared to lay blame on Ms Shen’s previous migration agent for advice in relation to Ms Shen’s visitor visa, but said it had limited evidence that the previous migration agent had provided negligent advice, and, in any event, no credible action to report the previous migration agent had been taken, further observing that it was for the visa holder to be aware of, and abide by, a visa’s conditions: CB 480 at [27];
(c)considered that the evidence provided about the financial aspects of the relationship at the time of application for the Partner Visa did little to shed light on the degree to which Ms Shen and the Sponsor shared resources, with the Tribunal placing adverse weight on Ms Shen retaining an apartment in China separate from the Sponsor, and the Sponsor not providing evidence of his own personal accounts. The Tribunal acknowledged that though the Sponsor had purchased two cars for Ms Shen it was concerned that the gifts were for the purpose of enhancing her migration claim and, on the whole, it was unable to identify probative evidence that Ms Shen and the Sponsor had pooled their resources since their marriage in April 2014: CB 480-482 at [28]-[43];
(d)found that evidence about the nature of their household which was provided by third parties and not by Ms Shen and the Sponsor demonstrated that they were living together, but it was not satisfied that they were living together as spouses, and not satisfied that they were living together on a permanent basis: CB 483 at [44]-[48];
(e)was troubled by the limited knowledge that Ms Shen and the Sponsor had of one another and gave as evidence of their mutual commitment to one another, especially after close to three years of marriage: CB 486-487 at [71]-[79]. Information that Ms Shen and the Sponsor had provided to the Tribunal as evidence of their love for one another was considered by the Tribunal to be general in nature and the statements masked the lack of any realistic foundation for Ms Shen and the Sponsor’s relationship: CB 487 at [80]-[82], and evidence of their communications early in their relationship appeared to the Tribunal to exacerbate its existing concern that the parties had entered into the marriage for the sole purpose of a migration outcome: CB 487 at [82];
(f)was not satisfied that Ms Shen and the Sponsor see their relationship as a long-term relationship, that they have a mutual commitment to one another to the exclusion of all others, or that they are living together on a permanent basis: CB 488 at [88]; and
(g)was not satisfied that at the time the Partner Visa application was made, and at the time of the Tribunal Decision, Ms Shen and the Sponsor were in a spousal relationship and that, accordingly, the Tribunal found Ms Shen did not meet cl 820.211(2)(a) or cl 820.221 of the Migration Regulations and affirmed the Delegate’s Decision: CB 489 at [89]-[93].
Judicial Review Application
Jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”). An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. Bias, whether actual or apprehended, may constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [72] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex Parte H”) at [27] per Gleeson CJ, Gaudron and Gummow JJ. To constitute jurisdictional error, the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Ms Shen to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
In this case it is important to observe that is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or to determine Ms Shen’s Partner Visa claims: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Grounds
The grounds of the Judicial Review Application are as follows:
1. I think the decision of the Administrative Appeals Tribunal was wrong.
2. The Tribunal took into account irrelevant matters when making its decision.
3.The Tribunal did not take into account relevant matters when making its decision.
Litigation history
As the Chief Judge of this Court observed Chief Judge .
Ms Shen filed her Judicial Review Application in the Melbourne Registry of this Court on 30 January 2017. Over six months later on 1 August 2017 the Judicial Review Application was the subject of a first court date before a Registrar in the Melbourne Registry when orders were made, amongst others, that the Judicial Review Application be listed for final hearing almost three years later on 8 May 2020 before Judge Wilson. Judge Wilson was subsequently appointed to the Family Court of Australia and on 23 May 2019 the parties were advised that hearing of the matter had been adjourned, and that they would be advised in due course of a new listing date. More than two years later in June 2021 the Judicial Review Application was transferred to the Perth Registry of the Court, and listed for hearing in the Perth Registry before the Court as presently constituted on 4 February 2022, on which date the hearing proceeded.
Ms Shen and the Sponsor’s affidavits and submissions
As is evident from the more detailed than usual setting out at [4(d)-(i)] above of the affidavits and submissions of Ms Shen and the Sponsor, those affidavits and submissions describe the events leading to and occurring within Ms Shen and the Sponsor’s relationship repeatedly and, for the most part (and particularly in the Sponsor’s affidavits), repetitively. Insofar as they do that they cross the boundary into seeking, and are only relevant to, impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v O’Connor and Others (No 3) [2010] FCA 691; [(2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 (“Zentai”) at [367] per McKerracher J. There are, however, some parts of those materials which do raise matters possibly relevant to the grounds of the Judicial Review Application, or other possible grounds of jurisdictional error and they are addressed below in relation to:
(a)ground 2 at [27]-[42];
(b)actual bias at [49]-[52]; and
(c)the lawyer’s advice and conduct at [53]-[62].
At hearing Ms Shen initially relied upon her written submissions and the various affidavits read, subject to admissibility, and insofar as they might otherwise be considered to be submissions. In reply, her oral submissions went no further than seeking to reargue the merits of the Partner Visa application: Transcript, pp 9-10.
Minister’s submissions
As to ground 1 the Minister submitted that:
(a)Ms Shen has not set out why she says the Tribunal Decision is wrong. There is nothing on the face of the Tribunal Decision which is indicative of legal error and in reality Ms Shen is seeking to invite the Court to review the merits of the matter; and
(b)it is well-established that this Court cannot review the merits of the Tribunal Decision or grant Ms Shen the Partner Visa that she seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error on the basis of the material and evidence that were before it: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As to Ground 2 the Minister submitted that:
(a)the Tribunal will only commit a jurisdictional error by taking into account irrelevant considerations or failing to take into account relevant considerations if it was bound, by the Migration Act, to ignore those matters or to consider those matters, respectively: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560, CLR at 39-40 per Mason J. As Ms Shen has not identified which considerations she says were irrelevant, the ground cannot be sensibly responded to;
(b)to the extent that this ground could be construed as taking issue with the anonymous allegation that was provided to the Tribunal and the subject of the second hearing on 16 November 2016: CB 493, the anonymous allegation was relevant. If accepted, the allegation that Ms Shen and the Sponsor were in a “fake marriage” could rationally affect the Tribunal’s assessment of whether Ms Shen was the spouse or de factor partner of the Sponsor at the time of the Partner Visa application: Migration Regulations, Sch 2, cl 820.211(2)(a);
(c)in any event, the Tribunal specifically excluded the fake marriage allegation from its deliberations: CB 478-479 at [13]-[16];
(d)the proceedings before the Tribunal are inquisitorial and the Tribunal was not in the position of a contradictor. It was for Ms Shen to advance whatever evidence or argument she wished to advance in support of her contention that she was entitled to the Partner Visa, and it was for the Tribunal to then decide whether that claim was made out: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584; CLR at [187] per Gummow and Hayne JJ;
(e)in assessing whether the claim was made out, the Tribunal in this case had to have regard to the legislative criteria, in particular the factors set out in reg 1.15A(3) of the Migration Regulations: Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374 at [46] and [60]-[62] per White J. The Tribunal in this case clearly gave active intellectual consideration to those relevant matters: see the summary at [36]-[41] of the Minister’s Submissions;
(f)the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J;
(g)it was appropriate for the Tribunal to turn its attention to the “false marriage” allegation, and then make an assessment about its relevance and the weight to be given to it: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 at [7] per Kiefel CJ and Gageler J;
(h)noting that the “false marriage” allegation was relevant but rejecting it for the reasons articulated by the Tribunal at CB 478-479 at [13] and [15], the question may arise as to whether it nevertheless infected the Tribunal’s ultimate conclusion that Ms Shen and the Sponsor were not in a genuine and continuing relationship. There is no basis in the evidence for such a conclusion. Moreover, a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 5 of the MigrationAct provides would not reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arose for its decision in the conduct of the review: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; (2000) 75 ALJR 277 (2000) 63 ALD 577 (“Ebner”) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. There is simply no logical connection between the Tribunal confronting and dismissing the “false marriage” allegation, and the feared deviation from the course of deciding the case on its merits: Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ;
(i)Ms Shen has failed to demonstrate that:
(i)first, an alleged irrelevant consideration was, as a matter of law, to be regarded as irrelevant to the exercise of power;
(ii)second, the Tribunal relied on the alleged irrelevant consideration in a way which affected the exercise of power; and
(iii)third, the proper exercise of this Court’s discretion would be to set aside the decision and order it to be re-exercised.
As to Ground 3 the Minister submitted that:
(a)Ms Shen has not identified what the Tribunal has failed to consider, beyond a recitation of the history of the Partner Visa application and the tender of further material to support the claimed relationship;
(b)this Court cannot consider the further material for the purpose of disagreeing with the factual conclusions reached in the Tribunal Decision;
(c)to the extent that Ms Shen claims that her original lawyer gave her wrong advice,
and that the Partner Visa application ought to have been made after Ms Shen and the Sponsor were married, this is of no consequence for two reasons:(i)first, mere negligence, inadvertence or incompetence on the part of a representative will not constitute fraud on the Tribunal: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [33] per Tamberlin, Finn and Dowsett JJ; Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 (2016) 161 ALD 386; and
(ii)second, the Tribunal was not satisfied that Ms Shen and the Sponsor were in a genuine or continuing relationship at any time, rather than rejecting the application on the basis made by the Delegate, namely, whether the de facto relationship existed for at least 12 months prior to application per reg 2.03A of the Migration Regulations. In arriving at this view, the Tribunal had regard to the prescribed matters in the Migration Act and Migration Regulations. The Tribunal gave detailed consideration to the evidence provided by the parties, but gave significant adverse weight to the implausibility of the relationship’s inception and its development, the lack of involvement of close family members in their lives and the limited knowledge Ms Shen and the Sponsor had about each other after three years of marriage. Those findings, as well as the Tribunal’s conclusions that Ms Shen and the Sponsor did not have a mutual commitment to each other to the exclusion of others, or are living together permanently, were open on the evidence before the Tribunal; and
(d)Ms Shen has failed to discharge her onus of establishing on the balance of probabilities the facts upon which her claim to relief is founded. This ground must fail.
Consideration – Ground 1
The allegation of illogicality made in ground 1 is not particularised.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J, citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams. The Court heard oral submissions from Ms Shen but those submissions did not address, identify or particularise any jurisdictional error in ground 1, or any other ground or possible ground: see [21] above.
The failure to particularise ground 1 therefore provides no basis for a finding of jurisdictional error in relation to ground 1 of the Judicial Review Application.
Mere disagreement, and even emphatic disagreement, with the Tribunal findings does not constitute jurisdictional error; fact finding and the weight to be given to evidence being a matter for the Tribunal, and the disagreement constituting, as here, no more than a request for impermissible merits review of the Tribunal Decision, contrary to long-standing and established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [61] per McKerracher, Griffiths and Rangiah JJ.
Ground 1 claims the Tribunal Decision is wrong but goes no further, and certainly not to the extent of addressing, establishing or identifying that there is an active or appreciable engagement with the content of the Tribunal Decision so as to raise a ground of jurisdictional error.
Ground 1 is no more than an expression of disagreement with the Tribunal Decision, but does not establish any jurisdictional error in the Tribunal Decision.
Consideration – Ground 2
Ground 2 refers to supposedly “irrelevant” matters that the Tribunal considered and then relied upon in the making of the Tribunal Decision, but the Judicial Review Application fails to address, establish or identify these supposedly irrelevant factors upon which the Tribunal relied in making the Tribunal Decision. There are, however, some matters in Ms Shen’s affidavits and submissions which relate to allegedly irrelevant matters considered by the Tribunal, and these are set out at [28] and [29] below. The Court observes that Ms Shen’s descriptions of these matters should not be assumed to be a strictly accurate reflection of the Tribunal’s findings in relation to those matters, but the descriptions are sufficient to indicate the general nature of the subject matter considered by the Tribunal.
In Ms Shen’s Second Affidavit at ANX 1 (on a page headed “Summary 5-5”, and repeated verbatim in Ms Shen’s Submissions, Appendix 1 –where the pages are unnumbered ) Ms Shen sets out a list of irrelevant matters she says the Tribunal “considered”, as follows:
(a)“we do not know what the applicant’s son think about this marriage”;
(b)why Ms Shen did not sell her apartment (in China) before coming to Australia;
(c)why the Sponsor did not go to the airport;
(d)why the Sponsor’s children did not attend the wedding; and
(e)why the Sponsor “did not buy an asset for his wife”.
In Ms Shen’s Submissions (15 September 2017) at Appendix A (the pages are not numbered) she asserts that the following matters were irrelevant (she uses “irreverent” but the meaning is clear):
(a)that the Tribunal “put to her in the hearing that the Sponsor was in fact Muslim” (repeated in Appendix D on a page marked D3/43, accompanied by an assertion that the Tribunal gave a “clear indication of her hatred towards muslim religion, and her discrimination , her negative and bad feeling towards muslim is beyond reach”);
(b)why the Sponsor’s children did not attend the wedding ceremony;
(c)why the Sponsor did not go to the airport upon Ms Shen’s arrival;
(d)why Ms Shen did not sell her apartment before coming to Australia;
(e)why the Sponsor did not contact Ms Shen’s then 12 year old son;
(f)why the Sponsor purchased a car for Ms Shen; and
(g)“why in your bank statement, you purchased clothing”.
The allegations with respect to the Sponsor being a Muslim and the Tribunal’s treatment of that fact are, in addition to being an alleged irrelevant consideration, also an allegation of actual bias which the Court deals with below at [49]-[52].
Section 5F of the Migration Act provides as follows:
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
Regulation 1.15A of the Migration Regulations provides as follows:
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
The effect of s 5F of the Migration Act and reg 1.15A of the Migration Regulations is to impose an overarching obligation on the Tribunal to consider all the circumstances of the claimed relationship: He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 at [76]-[78] per Siopis, Kerr and Rangiah JJ; Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69 (“Angkawijaya”) at [5], [50]-[52] per Kenny and Griffiths JJ (with whom Allsop CJ at [1] agreed); Wuv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091; (2021) 358 FLR 269 at [26] per Judge Lucev. The Federal Court has said that the obligation imposed upon the Tribunal “… was expressed in mandatory terms … [and] set out, among other things, particular circumstances of the relationship to which regard “must” have been had by the Minister (and, indirectly, by the Tribunal)”: Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788 (“Nassouh”) at [10] per Katz J.
In relation to the nature of the obligations imposed by reg 1.15A(2) and (3) of the Migration Regulations compliance with the prescribed criteria turns on the Tribunal’s satisfaction: Migration Act, s 65, as to whether or not the relevant criteria have been met and not on the objective existence of that fact, but there is an overarching obligation to consider all the circumstances of the claimed relationship: Angkawijaya at [5], [50]-[52] per Kenny and Griffiths JJ (with whom Allsop CJ at [1] agreed); Fobizi v Minister for Immigration & Anor [2017] FCCA 1738; (2017) 323 FLR 226 at [22]-[25] per Judge Lucev, but bearing in mind that the prescribed requirements, here reg 1.15A of the Migration Regulations, are not exhaustive: Angkawijaya at [50(5)] and [52] per Kenny and Griffiths JJ.
Each of the allegedly irrelevant matters referred to at [28] and [29] above were matters which were relevant to “all of the circumstances of the relationship” or one or more of the mandatory factors for consideration under reg 1.15A(2) and (3) respectively of the Migration Regulations, or matters relevant to the definition of “spouse” in s 5F of the Migration Act. They were therefore relevant matters for the purposes of the Tribunal’s consideration of the Partner Visa application.
In relation to the allegation that the Tribunal’s consideration of the Sponsor being a Muslim was irrelevant the Court notes that Ms Shen alleges that the Tribunal put to her that the Sponsor was Muslim. The Court further notes that no part of the transcript of the First or Second Tribunal Hearing has been put into evidence by Ms Shen. In the absence of the transcript of the First or Second Tribunal Hearing the best evidence of what occurred at the First and Second Tribunal Hearing is the Tribunal Decision: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [24] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.
In dealing with the inception and development of the relationship the Tribunal noted that Ms Shen and the Sponsor “chatted electronically” on a Chinese professional dating site “before seeing each other face-to-face on SKYPE”, and that Ms Shen spoke little English and the Sponsor spoke no Mandarin: CB 479 at [17]. The Tribunal went on to indicate that he was not convinced that Ms Shen and the Sponsor “were able to use translational software to overcome the language barrier to consider making a decision to explore a relationship, particularly as the parties also come from different backgrounds. The applicant is a Chinese Christian and the sponsor is an Iranian Muslim”: CB 479 at [18]. In making findings as to Ms Shen and the Sponsor’s mutual commitment to one another the Tribunal observed at CB 487 at [77] that:
Given the parties come from different cultures the Tribunal considers it incongruous that they would not have displayed curiosity about fundamental matters regarding each other’s lives.
It is not plausible that the applicant would not have inquired of the sponsor where in Iran he was born or that she would not have known, as put to her at hearing, that the sponsor was in fact Muslim.
It is thus clear that the Tribunal did put to Ms Shen at either the First or Second Tribunal Hearing that the Sponsor was a Muslim, and equally clear that she did not know that he was so.
Whilst it is unfortunate that decision-makers are required to explore the interstices of people’s lives as part of the process of considering Partner Visa applications, the legislation legitimises the process by requiring consideration of matters such as:
(a)“a mutual commitment to a shared life as a married couple”; Migration Act, s 5F(2)(b);
(b)“the relationship between them is genuine and continuing”: Migration Act, s 5F(2)(c);
(c)“all the circumstances of the relationship”: Migration Regulations, reg 1.15A(2); and
(d)“the nature of the persons’ commitment to each other”: Migration Regulations, reg 1.15A(3)(d).
Against the backdrop of the mandatory legislative criteria it was not unreasonable, illogical or irrational (in the sense referred to in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131]-[135] per Crennan and Bell JJ) for the Tribunal to consider whether the respective backgrounds (including religious backgrounds) of Ms Shen and the Sponsor were such as to cast doubt upon the plausibility of the relationship, and more specifically, whether the legislative criteria were met.
In relation to the matters the subject of the 375A Certificate (described by the Minister as the “false marriage” allegation) Ms Shen variously refers to the “impact” of these matters as “deep” and “serious”: Ms Shen’s Second Affidavit at page 5; Ms Shen’s Submissions at page 5. That is, however, a misconception of what the Tribunal did, because as it “stated at hearing, the only fair thing for the Tribunal to do was to exclude the allegation from its deliberations completely”: CB 478-479 at [14]. There is no evidence, and no basis for inferring, that the Tribunal did anything other than what it said it did, that is, to exclude the allegation the subject of the 375A Certificate (the “false marriage” allegation) from its consideration. Nothing in those circumstances gives rise to any suggestion of bias in relation to the subject matter of the 375A Certificate, whether actual or apprehended, on any of the usual tests: as to which see Jia Legeng; Ex parte H and Ebner.
In the above circumstances ground 2 fails to establish jurisdictional error in the Tribunal Decision.
Consideration – ground 3
Ground 3 fails to address or identify the allegedly relevant matters not considered by the Tribunal. As with ground 1 the failure to particularise ground 1 therefore provides no basis for a finding of jurisdictional error in relation to ground 3 of the Judicial Review Application. From a reading of the various affidavits and submissions filed by Ms Shen it is not apparent to the Court that any allegedly relevant matters said not to have been considered by the Tribunal are referred to in those affidavits and submissions.
In this matter the Tribunal considered the factors which s 5F of the Migration Act and reg 1.15A(2) and (3) of the Migration Regulations mandated as factors for consideration.
In the Court’s view, the Tribunal has identified the relevant factors, and considered all of the circumstances of the relationship, as they appeared on the evidence before the Tribunal. In so doing, the Tribunal had regard to all the relevant matters appearing on the evidence. It was then for the Tribunal to consider and weigh that evidence: Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ; Lee at [27] per French J, which it did, comprehensively.
Ground 3 therefore fails to establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
Because Ms Shen was self-represented, the Court is cognisant that it should remain independently alert to the possibility of a jurisdictional error otherwise existing in the Tribunal Decision: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
The Court has considered the various affidavits and submissions filed by Ms Shen, and considers that two matters, first, whether actual bias affected the Tribunal Decision in relation to matters associated with the Sponsor being a Muslim, and, second, whether Ms Shen’s initial lawyer’s advice and conduct constituted a fraud on the Tribunal, warrant consideration as possible jurisdictional errors in the Tribunal Decision.
Whether actual bias
The Tribunal’s consideration of matters related to the Sponsor being a Muslim, and Ms Shen’s complaints concerning those matters, are fully set out at [29]-[40] above in the Court’s consideration of ground 2. As indicated at [41] above the Court considers Ms Shen’s complaints are indicative of a perception, on her part, of actual bias on the part of the Tribunal.
It is well established that an allegation of bias is a serious matter which must be distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow JJ and [127] per Kirby J. The evidence in this case, such as it is absent a transcript of any part of either the First or Second Tribunal Hearing, amounts to no more than the Tribunal putting to Ms Shen at either the First or Second Tribunal Hearing that the Sponsor was a Muslim, and the Tribunal indicating that it was clear that she did not know that he was so: CB 487 at [77] (set out at [38] above). The question, or possibly questions, that the Tribunal obviously asked were, for the reasons set out at [39] above, part of the Tribunal’s necessary exploration of matters it was mandatorily required to consider under the Migration Act and Migration Regulations. Further, there is nothing in the evidence which would suggest a pre-existing state of mind incapable of persuasion or unwilling to undertake a proper assessment of the evidence and material before it: Jia Legeng at [35] and [72] per Gleeson and Gummow JJ. In the circumstances actual bias is not made out.
Lest the materials be seen as giving rise to an allegation of apprehended bias it suffices to observe that on the available evidence and materials no fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the assessment of the material and relevant issues: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ. Indeed it is evident that the Tribunal engaged with the issues before it, and did so comprehensively having regard to evidence and material before it and the relevant legislative criteria and factors. The findings the Tribunal made were open to it, and whilst the Court suspects that a differently constituted Tribunal might not have made all of the same findings, or even the same ultimate finding, that is not the test for bias, or other forms of jurisdictional error: SZMDS at [131]-[135] per Crennan and Bell JJ. In the circumstances apprehended bias is not made out.
It follows from the above reasons that there is no jurisdictional error in the Tribunal Decision by reason of bias, whether actual or apprehended.
Lawyer’s advice and conduct – whether fraud on the Tribunal
In the various affidavits and submissions filed by her Ms Shen raises an issue with respect to the advice obtained from, and the conduct of, the lawyer who filed the Partner Visa application. Ms Shen says that having found a lawyer near her and the Sponsor’s home they received a telephone call from the lawyer at about 10.00am on 30 April 2014. The lawyer asked Ms Shen and the Sponsor to come to his office and bring the relevant documents, and his fee in cash, at 7.00pm that evening. Ms Shen and the Sponsor went to the lawyer’s office at the time requested and paid the lawyer’s fee in cash. They also paid, by credit card, the application for the Partner Visa, the Partner Visa having been prepared and filed electronically that evening by the lawyer. Confirmation of receipt of the Partner Visa application was received from the Department.
As at 30 April 2014 Ms Shen and the Sponsor were not yet married, but had made an application to be married, and were married on 23 June 2014, following the Sponsor’s divorce from his previous wife becoming effective from 4 May 2014. Ms Shen and the Sponsor on the evening of 30 April 2014 showed the lawyer their application for marriage and informed him that they had not yet received the Sponsor’s divorce certificate in relation to his previous marriage. They say that they asked the lawyer about this, and that the lawyer told them it did not make any difference, and that they believed the lawyer when he gave this advice.
Some days later Ms Shen and the Sponsor called at the lawyer’s office and were told he did not work there anymore, and that he had finished working at that office at 5.00pm on 30 April 2014 (that is some two hours before the lawyer saw Ms Shen and the Sponsor on that evening).
On 25 June 2014 (two days after the marriage of Ms Shen and Sponsor) the lawyer contacted Ms Shen and the Sponsor and asked them to go to his new office, where he gave them notification that Ms Shen had been granted a bridging visa and an acknowledgement of their application for a Partner Visa. There was a subsequent contract with the lawyer in August 2014 when he sent further documents to the Department on behalf of Ms Shen.
Ms Shen and the Sponsor appear to assert that the filing of the Partner Visa application prior to their marriage somehow affected the outcome of that application, seemingly because, they say, the Delegate made an assessment based upon their de facto status at the time the Partner Visa application was filed, and was unaware of the workplace issues concerning the lawyer as at 30 April 2014 (the date of filing of the Partner Visa application). It can be inferred that Ms Shen considers that the outcome of the Partner Visa application may have been different if it had been lodged after they were married. This is the tenor of Ms Shen’s Submissions at the page marked “Summary 3-5”, and of the Sponsors Fourth Affidavit where in an unnumbered and un-paginated summary note immediately following the formal affidavit he says:
How the officer in immigration evaluated our case as a de-facto, one year later when he/she had all the documents(above docs) in hand, only relied on the situation at the time of application, you were de-facto. Disregarding all the steps we took to lodge marriage documents plus ceremony
We assume, that office was not aware of what was the reason behind the lodgement because of the negligent or that lawyer internal conflict in that law firm and we are the victim of the result
The Court observes that on occasions the lawyer is referred to as a migration agent by Ms Shen and the Sponsor, and it is not apparent whether he was both a migration agent and a lawyer, although it appears he was a lawyer, and the firm for which he worked operated as both lawyers and migration agents: see Sponsor’s First affidavit, ANX 2.
Does any of this give rise to jurisdictional error in the Tribunal Decision? The short answer is “no”, for the two reasons which follow.
First, these events all relate to matters leading up to the making of the Delegate’s Decision on 21 May 2015. This Court’s jurisdiction does not extend to reviewing the Delegate’s Decision as it is a “primary decision”: Migration Act, s 476(2)(b) and (4).
Second, the advice and conduct of the lawyer did not give rise to a fraud on the Tribunal. Even if the advice and conduct of the lawyer was, as Ms Shen appears to assert, negligent or incorrect, as it related to the initial process of the making of the Partner Visa application it was not conduct which was a fraud upon, or which somehow otherwise stultified, the Tribunal’s processes such that Ms Shen was denied the opportunity to be heard by the Tribunal, or which disabled the Tribunal from effecting the due discharge of its imperative statutory functions with respect to the review: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 80 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [51]-[52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31]-[34] per Besanko J.
For the above reasons, no jurisdictional error in the Tribunal Decision arises by reason of the advice obtained from, or the conduct of, the lawyer who filed the Partner Visa application.
Otherwise
Apart from the matters considered above, what Ms Shen appears to invite the Court to do is to undertake its own merits review based upon evidentiary material, which was largely before the Tribunal in any event. But this is not the Court’s task: the Court’s task is a limited one, namely to determine whether or not the Tribunal Decision is affected by jurisdictional error: Plaintiff S157/2002; Yusuf at [82] per McHugh, Gummow and Hayne JJ. The Court cannot stray from the narrow path of judicial review and engage in impermissible merits review contrary to the long-standing principles established and flowing from Wu Shan Liang, and see also Zentai at [367] per McKerracher J.
Conclusion and Orders
The Court has concluded that the grounds of the Judicial Review Application have not been made out, and do not establish jurisdictional error in the Tribunal Decision, and that the Tribunal Decision is otherwise unaffected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application. There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 8 September 2022
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