Shi v Minister for Immigration

[2017] FCCA 155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 155

Catchwords:
MIGRATION – Review of Administrative Appeal Tribunal decision –refusal of a temporary partner visa – applicant subject to Schedule 3 criteria in the absence of compelling circumstances – Tribunal found there were no compelling circumstances – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s.360

Cases cited:

Babicci v Minister for Immigration (2005) 141 FCR 285

Minister for Immigration v SZIAI (2009) 259 ALR 429

Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575

MZYPZ v Minister for Immigration [2012] FCA 478

Waensila v Minister for Immigration [2016] FCAFC 32

Applicant: XIONGZHONG SHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1651 of 2016

Judgment of: Judge Driver

Hearing date: 1 February 2017

Delivered at: Sydney

Delivered on: 1 February 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1651 of 2016

XIONGZHONG SHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Shi, challenges a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 June 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Shi a temporary partner visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 25 January 2017. 

Background

1. Mr Shi is a male citizen of China born on 3 May 1989.[1]  He arrived in Australia on 29 March 2007 as the holder of a Student (Subclass 571) visa.[2]

   [1] Court Book (CB) 56.

   [2] CB 144.

2. On 30 July 2015, Mr Shi applied for a Partner (Subclass 820) visa.[3]

   [3] CB 1.

3. Pursuant to sub-clause 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations), a criterion for grant of the subclass 820 Partner (Temporary) visa was:

   820.211

   (2) An applicant meets the requirements of this subclause if:

   …

   (d) in the case of an applicant who is not the holder of a substantive visa--either:

   (i) the applicant:

   (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B) satisfies Schedule 3 criterion 3002; or

   (ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

4. As Mr Shi was not the holder of a substantive visa at the time of his Partner visa application, nor did he enter Australia as the holder of a subclass 995 or special purpose visa, he needed to satisfy sub-clause 820.211(2)(d)(ii) above.

5. It is a requirement of clause 3001 of Schedule 3 to the Migration Regulations that:

   (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

6. Sub-clause 3001(2)(c)(iii) provides that the “relevant day” is the day that the applicant last held a substantive visa.

7. As Mr Shi last held a substantive visa on 15 March 2009,[4]  he did not meet criterion 3001 at the time of application.

   [4] CB 144-145. Mr Shi applied for a Partner visa on 30 July 2015.

8. Sub-clause 820.211(2)(d)(ii) provides that where the applicant does not satisfy each of Criteria 3001, 3003 and 3004, the Minister must be satisfied that there are compelling reasons for waiving the Schedule 3 Criteria.

9. By email dated 7 December 2015,[5] Mr Shi was invited to put forward claims and evidence in relation to his compelling reasons.

   [5] CB 83.

10. Mr Shi’s agent responded to the invitation by email dated 23 December 2015,[6] attaching documents and a written statement of Mr Shi dated 14 July 2015.[7]

    [6] CB 89.

    [7] CB 109.

11. The delegate refused to grant Mr Shi a Partner visa on 15 February 2016.[8] Mr Shi applied to the Tribunal on 3 March 2016[9] for a review of the delegate's decision.

    [8] CB 144.

    [9] CB 174.

12. By letter dated 12 April 2016,[10] Mr Shi was invited to and attended a hearing before the Tribunal on 11 May 2016.[11] The Tribunal affirmed the delegate's decision on 1 June 2016.[12]

    [10] CB 214.

    [11]CB 235.

    [12] CB 242.

The decision of the Tribunal

1. The Tribunal found that pursuant to sub-clause 820.211(2)(d), an applicant for a Partner visa must satisfy each of the Schedule 3 criteria 3001, 3003 and 3004 unless compelling reasons exist for waiving the criteria.[13]

   [13] CB 243 at [12].

2. The Tribunal found that as the application for a Partner visa was not made within 28 days of the relevant day, Mr Shi did not satisfy criterion 3001.[14]

   [14] CB 244 at [16].

3. The Tribunal noted that there is no definition of “compelling reasons” for the purposes of sub-clause 820.211(2)(d)(iii), however it was guided in its interpretation by the principles in MZYPZ v Minister for Immigration[15],  Babicci v Minister for Immigration[16]  and Waensila v Minister for Immigration.[17]

   [15] [2012] FCA 478

   [16] (2005) 141 FCR 285

   [17] [2016] FCAFC 32; CB 244 at [18].

4. The Tribunal considered Mr Shi's claims and evidence,[18] in particular in relation to Mr Shi's financial circumstances,[19] the welfare of the sponsor's child,[20] the sponsor's physical and mental health[21] and Mr Shi's desire to have a child with the sponsor[22] and to return to China with his pregnant wife,[23] however found that these were not compelling reasons for waiving the Schedule 3 criteria.[24]

   [18] CB 244 - 246 at [19]-[26], [29]-[32] and [36].

   [19] CB 244 at [19] and [21].

   [20] CB 245 at [25]-[26].

   [21] CB 245 - 246 at [30]-[31].

   [22] CB 246 at [32].

   [23] CB 246 at [36].

   [24] CB 245- 246 at [24], [28]. [31] and [35]-[36].

5. The Tribunal considered the evidence of Mr Shi's sponsor[25] and that of the sponsor's mother.[26]

   [25] CB 244 - 245 at [27] and [33].

   [26] CB 245 at [22].

6. The Tribunal was ultimately not satisfied that there were compelling reasons for not waiving the Schedule 3 criteria and affirmed the delegate's decision accordingly.[27]

   [27] CB 247 at [42].

Present proceedings

1. These proceedings began with a show cause application filed on 28 June 2016.  Mr Shi continues to rely upon that application.  The grounds in the application in renumbered form are:

   1. I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for spouse visa onshore and I do have my compelling reasons.

   2. AAT did not well consider my compelling reasons to waive schedule 3 waiver. I have provided sufficient evidence to support my application, however DIBP and AAT did not give a good consideration of my situation such as my business, child and medical condition. AAT should give good consideration for my child's interest as priority.

   3. AAT did not consider that it is going to be more difficult for us to get our baby if we are forced to be separated. Our evidence is not well considered by AAT.

   4. I am a Chinese citizen and had a genuine spouse relationship with my sponsor.

   5. I provided with AAT member my compelling reasons with evidence, especially my child, however the member did not accept and not well considered them.

   6. AAT member did not show any concerns to my explanations at the hearing, I don't think I have been fairly treated.

   (errors in original)

2. I have before me as evidence the court book filed on 9 September 2016. 

3. I received as a submission Mr Shi’s short affidavit filed with his application.  Pursuant to procedural orders made by a registrar on 25 August 2016, the matter was listed for hearing today on a final basis.

4. Having regard to the grounds of review advanced and the absence of any legal issue raised by Mr Shi at the trial of the matter today, it seems to me that the matter probably should have been directed to a show cause hearing.  Nevertheless, Mr Shi has had the advantage of a final hearing today.  I explained to him the nature of these proceedings and the limited jurisdiction of the Court.  I recited to him the grounds the review advanced and explained the need for him to identify some significant legal mistake made by the Tribunal.

5. Mr Shi appeared to understand that but in his oral submissions he limited himself to identifying the problems he and his wife face.  In essence, Mr Shi wishes to pursue these proceedings to a conclusion and, if unsuccessful, his intention is to return to China with his wife and child and reapply for a residence visa in Australia from China.  He would prefer to pursue his application onshore but understands that if he is unable to disturb the decision of the Tribunal it will be necessary for him to pursue his objective from China.

6. Mr Shi is unable to demonstrate any jurisdictional error by the Tribunal.  On my own reading of the Tribunal’s decision, I am unable to discern any jurisdictional error.  The Minister’s legal submissions deal adequately with the grounds of review advanced.  I agree with those submissions.

Ground one

1. The Tribunal clearly considered whether there were compelling reasons for waiving the Schedule 3 criteria[28] and ultimately was not satisfied that such reasons existed.[29]

   [28] CB 244 – 246  at [19]-[26], [29]-[32] and [36].

   [29] CB 246 at [39].

2. Further, the Tribunal, in arriving in its decision, correctly interpreted “compelling reasons” for the purposes of sub-clause 820.211(2)(d)(ii).[30]

   [30] CB 244 at [18].

3. Having found that there were no compelling circumstances for waiving the Schedule 3 criteria, the Tribunal was not required to consider whether Mr Shi's relationship was “genuine and continuing”, in circumstances where Mr Shi needed to satisfy all the criteria in sub-clause 820.211(2)(d)(ii).

4. To the extent that ground one expresses Mr Shi's dissatisfaction with the Tribunal's decision, ground one goes no higher than to seek the Court to engage in impermissible merits review.

Ground two

1. Insofar as ground two pleads that the Tribunal failed to consider Mr Shi's compelling circumstances, for the reasons outlined above,[31] this assertion is not made out.

   [31] CB 244 - 246 at [19]-[26], [29]-[32] and [36].

2. Ground two further asserts that the Tribunal failed to consider Mr Shi's situation and in particular, failed to consider Mr Shi's business, child and medical condition.

3. The Tribunal considered Mr Shi's evidence in relation to his mortgage and business[32] as well as the report from IVF Australia in relation to the sponsor's alleged hormonal problems,[33] however it was ultimately not satisfied on this basis that there were compelling reasons for waiving the Schedule 3 criteria.

   [32] CB 244 at [19], [20], and [24].

   [33] CB 246 at [33].

4. Further, the Tribunal noted that Mr Shi failed to submit any evidence to support his claims in relation to the sponsor's child's welfare[34] or to indicate that Mr Shi's sponsor suffers from depression or back pain.[35]

   [34] CB 245 at [28].

   [35] CB 246 at [31].

5. It was for Mr Shi to make out his case before the Tribunal.[36] Thus in circumstances where the Tribunal considered the evidence provided by Mr Shi,[37] the assertion that the Tribunal failed to properly consider Mr Shi's situation is not made out.

   [36] Minister for Immigration v SZNVW and Anor (2010) 183 FCR 575, 586 (Keane CJ), 589 (Emmett J); Minister for Immigration v SZIAI (2009) 259 ALR 429, 436.\

   [37] CB 244 - 246 at [19]-[26], [29]-[32] and [36].

6. Finally, insofar as Mr Shi asserts that the Tribunal should consider the child’s interest as a priority, the Tribunal considered whether the sponsor's child's welfare was a compelling reason to waive the Schedule 3 criteria[38] and found that it was not.[39] This was all the Tribunal was required to do in the circumstances.

   [38] CB 245 at [25]-[27].

   [39] CB 245 at [28].

7. In circumstances where Mr Shi failed to provide the Tribunal with any evidence to indicate that the presence of Mr Shi is a significant factor in the child's welfare,[40] this finding was open to the Tribunal on the facts and material before it.

   [40] CB 245 at [28].

Ground Three

1. Ground three asserts that the Tribunal failed to consider that it would be more difficult for Mr Shi and his sponsor to conceive if they are separated and that the Tribunal did not consider Mr Shi's evidence in this regard.

2. The Tribunal considered Mr Shi's claim that he and his sponsor wished to have a child[41] and his evidence that his wife was on the oral contraceptive pill and may have polycystic ovarian syndrome.[42]

   [41] CB 246 at [32].

   [42] CB 246 at [33].

3. The Tribunal nonetheless found that Mr Shi's sponsor had already given birth on one occasion and noted that Mr Shi had failed to provide any medical evidence to indicate that his sponsor suffered from age-related fertility problems.[43]

   [43] CB 246 at [34].

4. In circumstances where it was for Mr Shi to make out his case before the Tribunal and where the Tribunal clearly considered Mr Shi's claims and evidence, it was open to the Tribunal to find that the couple's desire to have a child or the possibility that the sponsor may have fertility issues were not compelling reasons for waiving the Schedule 3 criteria.

Ground four

1. This ground does not identify any jurisdictional error on the part of the Tribunal.

Ground five

1. In relation to ground five, the Tribunal clearly considered Mr Shi’s claims and evidence,[44] however it was not satisfied that they were compelling reasons for waiving the Schedule 3 criteria.[45]

   [44] CB 244 - 246 at [19]-[26], [29]-[32] and [36].

   [45] CB 246 at [39].

2. Accordingly ground five, to the extent that it expresses Mr Shi's dissatisfaction with the Tribunal's decision, goes no higher than to seek impermissible merits review.

Ground six

1. On a fair reading of the Tribunal’s decision record, the Tribunal considered Mr Shi's oral evidence given at the hearing.[46] Mr Shi was invited to and attended a hearing before the Tribunal pursuant to s.360 of the Migration Act 1958 (Cth) and no error in this respect arises.

   [46] CB 244 - 246 at [19]-[26], [29]-[32] and [36].

Conclusion

1. I conclude that, in view of the absence of any jurisdictional error by the tribunal, the Tribunal’s decision is a privative clause decision and the application must be dismissed. I will so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000.  That is appropriately below the scale amount for a final hearing.  Mr Shi expressed surprise that he was exposed to an adverse costs order but I reminded him that I had alerted him to that risk at the outset of today’s hearing.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 3 February 2017