SZSLA v Minister for Immigration
[2019] FCCA 2824
•27 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2824 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visas – Tribunal refusing to waive Schedule 3 criteria – whether the Tribunal relied on irrelevant material or made an unreasonable decision considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 375A Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| First Applicant: | SZSLA |
| Second Applicant: | BCX19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3956 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 October 2019 |
| Date of Last Submission: | 29 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr P Berg |
| Solicitors for the Applicants: | KWL Lawyers |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as amended on 1 May 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3956 of 2017
| SZSLA |
First Applicant
BCX19
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 December 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants temporary partner visas.
The first applicant (applicant) had previously made an application for a protection visa, hence the applicants were allocated pseudonyms in these proceedings.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 8 March 2019.
The applicant is a Chinese citizen born in May 1990.[1] On 19 January 2015, he applied for the visa[2] on the basis of his spousal relationship with the Sponsor.[3]
[1] Court Book (CB) 2
[2] CB 1-35
[3] CB 36-45
In order to be granted the visa, the applicant had to meet a range of criteria pursuant to ss.31(3) and 65(1)(a)(ii) of the Migration Act 1958 (Cth) (Migration Act). Relevantly, this included clause 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided:
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(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.
Criterion 3001(1) (of Schedule 3 to the Regulations) provided: “The application is validly made within 28 days after the relevant day” (within the meaning of subclause (2)).[4]
[4] The “relevant day” being the last day on which the applicant held a substantive visa: see criterion 3001(2)(c)
On 18 November 2016, the delegate refused to grant the applicant the visa.[5] The delegate found that the application had been made more than 28 days after the last day on which the applicant held a substantive visa (being 15 March 2010). Accordingly, the applicant did not meet criterion 3001. The delegate further found that there were no “compelling reasons” for not applying criterion 3001 and, accordingly, concluded that the applicant did not satisfy clause 820.211(2)(d)(ii).
[5] CB 254-286
On 6 December 2016, the applicant sought review by the Tribunal of the delegate’s decision.[6] On 14 November 2017, the applicant was invited to appear at a hearing before the Tribunal, to be held on 4 December 2017.[7] That hearing took place as scheduled.[8] On 7 December 2017, the Tribunal affirmed the delegate’s decision.
[6] CB 287-289
[7] CB 303-304
[8] CB 382
The Tribunal’s decision
The Tribunal found that the last substantive visa held by the applicant expired on 15 March 2010.[9] The Tribunal further found that the applicant did not hold a substantive visa at the time of visa application (January 2015), and that his visa application had been made more than 28 days after the last day on which he held a substantive visa. Accordingly, the Tribunal was satisfied that the applicant did not meet criterion 3001.[10] The Tribunal then turned to consider whether there were “compelling reasons” for not applying the Schedule 3 criteria.[11]
[9] CB 389 [8]
[10] CB 389-390 [7]-[11]
[11] CB 389 [13] onwards
The Tribunal considered that the applicant had “not been truthful in his evidence concerning his relationships with his former partner and his present partner”.[12] It referred to the applicant’s evidence that his relationship with the Sponsor was genuine, and was prepared to accept “at face value”, for the purposes of its decision, that the applicant and Sponsor were in a genuine relationship.[13] However, the Tribunal did not accept that, in the circumstances of this case, the existence of a long-term genuine relationship between the applicant and Sponsor amounted to “compelling reasons” to not apply the Schedule 3 criteria.[14]
[12] CB 390 [15]
[13] CB 390 [15]
[14] CB 390 [15]; 391 [22]
The Tribunal considered the applicant’s claim that there were “compelling reasons” to waive the Schedule 3 criteria because he had a child with the Sponsor. However, the Tribunal did not accept that this amounted to “compelling reasons”, because it did not accept that the child was born from the applicant and Sponsor’s relationship. In this respect, the Tribunal noted that:
a)between 28 January and 30 April 2014, the applicant indicated to the Minister’s Department that he was in a relationship with his former partner (ie. not the Sponsor). This contradicted the applicant’s evidence to the Tribunal that he “started to separate” from his former partner in October 2013 and had commenced a relationship with the Sponsor in early 2014;[15]
b)the applicant had given inconsistent information to the Minister’s Department about when he started living with the Sponsor and had ceased living with his former partner;[16]
c)notwithstanding the applicant’s claim to have begun to break up with his former partner in October 2013 and to have ended that relationship in January 2014, the applicant made a Ministerial intervention application with her in December 2013 and pursued that application through to May 2014. The applicant was not able to explain to the Tribunal’s satisfaction why, if he had ceased his relationship (as he claimed to the Tribunal) with the former partner in January 2014, he continued to seek bridging visas and Ministerial intervention on the basis of it until April 2014. The Tribunal considered that the applicant had not been truthful as to the circumstances and time at which his previous relationship had ended and the current relationship had begun. This period of uncertainty covered the time at which the child was likely to have been conceived;[17] and
d)the applicant had been invited by the delegate to undergo a DNA test (to establish his paternity of the child), but refused to do so. The Tribunal considered that, given the concerns it held about the applicant’s reliability and truthfulness, it was “neither unreasonable nor unfair” to require the applicant to undergo paternity testing.[18] The Tribunal observed that the applicant was “well aware” that proving the paternity of his child was significant to his case, and considered that the applicant’s refusal to undertake a DNA test, along with the concerns the Tribunal held as to the truthfulness of the applicant’s evidence about his past relationships, strongly suggested that the applicant was not the biological father of the child.[19]
[15] CB 392 [23(a)]
[16] CB 392 [23(b)]
[17] CB 392 [23(c)]
[18] CB 392 [23(d)]
[19] CB 393 [23(d)]
The Tribunal was thus not satisfied that the applicant was the biological father of the child.[20]
[20] CB 393 [24]
The Tribunal also considered the applicant’s claim that this child (discussed above), as well as his two children from his previous relationship, were reliant on him physically, emotionally and financially.[21] The Tribunal observed that there was “little evidence” to indicate that the children rely on the applicant.[22] The Tribunal was not satisfied that the applicant could only provide emotional or financial support by remaining physically present in Australia, or that the children would be adversely affected by the temporary withdrawal of physical support if he departed Australia.[23]
[21] CB 393 [25]
[22] CB 394 [25]
[23] CB 394 [26]
The Tribunal did not accept the applicant’s explanation for having remained in Australia unlawfully,[24] or that any of the applicant’s alleged circumstances which had underpinned a past protection visa application amounted to “compelling reasons” to not apply the Schedule 3 criteria.[25] The Tribunal did accept the applicant’s evidence that the Sponsor had been receiving medical treatment, but did not accept that the applicant was “actively involved” in supporting her. The Tribunal was not satisfied that the Sponsor’s health would be adversely affected if the Schedule 3 criteria were not waived, and did not accept that her health issues gave rise to “compelling reasons” to do so.[26] The Tribunal also was not satisfied, on the evidence before it, that the applicant’s family would experience financial hardship if the Schedule 3 criteria were not waived.
[24] CB 394 [27]
[25] CB 395 [30]
[26] CB 395 [28]
The Tribunal stated that, having considered the applicant’s circumstances singularly and cumulatively, it was not satisfied that there were “compelling reasons” for not applying the Schedule 3 criteria. Accordingly, the Tribunal found that the applicant did not meet clause 820.211(2)(d)(ii), and affirmed the delegate’s decision.[27]
[27] CB 395 [32]
The present proceedings
The procedural history of this matter is somewhat messy. The proceedings began with a purported show cause application filed on 19 December 2017. That application raised a number of grounds under the heading “Orders sought by applicant” and apparently further grounds under the heading, “The grounds of the application are”. The application was defective in that it did not seek a writ of mandamus but only sought certiorari.
Procedural orders were made by a registrar on 5 February 2018. The matter was listed for a show cause hearing on 19 October 2018. That show cause hearing did not take place because, on 23 July 2018 I made orders by consent dispensing with the need for a show cause hearing and listing the matter for a final hearing on 18 March 2019. On that day, the applicant having only just obtained legal representation, I made further orders by consent providing the applicants with a further opportunity to file and serve an amended application and additional evidence. The hearing was deferred until 3 October 2019. There was a further minor amendment to the timetable on 20 September 2019.
An amended application in proper form was filed on 1 May 2019. That application raised 10 grounds of review. However, on 25 September 2019, in preparation for the trial, the applicants’ solicitors filed an outline of submissions which addressed only four of those grounds. When I queried this with counsel for the applicant at the trial, he stated that the only grounds that were being pressed were Grounds 5 and 6 and that Grounds 2 and 4 were not pressed. Those grounds are:
Ground 5
The Tribunal erred in relying on the irrelevant inference that the child was not a paternal child of the applicant.
(a) The Tribunal accepted the presence of a child of the relationship may constitute compelling reasons for the waiver.
(b) The Tribunal failed to apply that conclusion of law, with the facts, namely that the Applicant is the father of the child, regardless of paternity.
Ground 6
The Tribunal’s decision is illogical, irrational and unreasonable in that it accepts the presence of a child in the relationship but fails to identify compelling reasons for a waiver of the criteria.
Counsel sought to address submissions to those grounds orally by reference to a transcript of the Tribunal hearing, but no transcript had been filed or served. I permitted the applicant to tender the transcript[28] and gave the Minister the opportunity to make post hearing submissions in relation to it, which opportunity was taken up. Given the unsatisfactory circumstances, I also imposed a costs penalty.
[28] Exhibit A1
I also have before me as evidence the court book filed on 15 March 2018.
Numerous affidavits were filed during the course of the interlocutory stages of the proceedings but were not read. Included in those was an affidavit by Arielle Bianca Zinn made on 31 May 2018 concerning a non disclosure certificate issued under s.375A of the Migration Act. The documents purportedly covered by the certificate were exhibited to that affidavit. The certificate is reproduced at CB 300 and the Tribunal refers to it at [3] of its reasons.[29] The applicants have raised no issues in relation to the certificate.
[29] CB 389
Consideration
The two grounds on which the applicants continue to rely can be dealt with together. Both concern the Tribunal’s findings at [25]-[26] where the Tribunal stated:[30]
The Tribunal has also considered whether the presence of this child, who may not be the child of the relationship, would nevertheless constitute a compelling reason for the waiver. The Tribunal notes that the applicant has a child from a previous relationship who, he claims, lives in the same household and the sponsor also has two children from a previous relationship. The applicant claims in his submission to the delegate that the two children from the previous relationship, as well as his child with the sponsor, have been relying on him physically, emotionally and financially. The Tribunal is mindful that there is very little independent probative evidence to support this claim. The Tribunal is prepared to accept that if the applicant lives in the same household as his partner and children, there may be some bond between the applicant and the children. However, there is little evidence before the Tribunal to indicate that the children rely on him.
Equally significantly, the Tribunal is not satisfied that the emotional and financial support can only be provided if the applicant is physically present in Australia and if the family resides under one roof, that is, if the waiver is applied. The applicant told the Tribunal that he wants to stay in Australia to build a better future for his wife and children. In the Tribunal’s view, if the applicant is required to leave Australia, he will still be able to maintain a close relationship with the sponsor and the children, if he claims such a relationship exists now. They will be able to maintain frequent contact and the applicant will be able to continue to provide emotional support to the children, if he claims to be providing such support now. It is not uncommon for partners and children to be separated and such separation need not preclude the existence of emotional support. The same issue applies in relation to the financial support. There is no obvious reason why the applicant could not obtain employment in his home country to provide financial support to his partner if such support is needed, even if his income could be diminished. As for physical support, the Tribunal is mindful that if the applicant was to leave Australia, any period of separation will be temporary. If the present relationship is genuine, the applicant will be able to make another application for a Partner visa and may be granted such a visa. There is little evidence to satisfy the Tribunal that the sponsor or the children will be adversely affected by the temporary withdrawal of physical support. The Tribunal does not consider that the withdrawal of such support constitutes a compelling reason for the waiver.
[30] CB 393-394
In oral argument at the trial, counsel for the applicants put the proposition that there was no evidence to support the findings made by the Tribunal and that this established a failure to engage in an active intellectual process concerning the circumstances of the children of the family. In post hearing submissions, the applicants contend that a fair reading of the Tribunal’s decision at [25]–[26] shows that it did consider the applicant’s capacity to give physical, emotional and financial support to the children, if he were to be removed from Australia. In part, the Tribunal, at [25], based such consideration on the likelihood of some bond between the applicant and the children.
Those submissions also address three positive findings by the Tribunal at [26]:
a)In the Tribunal’s view, if the applicant is required to leave Australia, he will still be able to maintain a close relationship with the sponsor and the children, if he claims such a relationship exists now.
b)They will be able to maintain frequent contact and the applicant will be able to continue to provide emotional support to the children, if he claims to be providing such support now.
c)As for physical support, the Tribunal is mindful that if the applicant was to leave Australia, any period of separation will be temporary. If the present relationship is genuine, the applicant will be able to make another application for a partner visa and may be granted such a visa.
The applicants complain that the transcript shows the Tribunal did not speak with the applicant about any of the three findings. There is said to be no other evidence the Tribunal relied on to make the findings.
The argument advanced by the applicants is that, in assessing whether compelling reasons existed to not apply the Schedule 3 criteria,[31] the Tribunal failed to have any active intellectual engagement with the impact on certain children that the applicants claimed were “physically, emotionally and financially” reliant on him, which would arise from his temporary absence from Australia (if he were required to depart Australia in order to apply for the visa).
[31] cf clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations
In my view, the submissions put on behalf of the applicant do not establish jurisdictional error. The Minister’s submissions respond effectively to the applicants’ claims. The concern lies with the adequacy of the Tribunal’s reasoning. The Tribunal’s task was to consider whether it could reach a state of satisfaction on the basis of what was put before it. There was no obligation on the Tribunal to undertake its own enquiries. The applicants could have presented more material to the Tribunal to support their claims (separately from the postulated DNA test). For example, the couple could have obtained parenting orders from this Court in its family law jurisdiction. They could have obtained supportive evidence from a counsellor or social worker. They did none of those things. Rather, the claims made were little more than bare assertions. In the circumstances, it is hardly surprising that the Tribunal’s consideration of the claims does not delve into great detail. There was no great detail to delve into.
It is true that the hearing conducted by the Tribunal would have been an opportunity for the Tribunal to explore these issues further with the applicants. The applicants contend that the Tribunal failed to do so. Nevertheless, the applicants were on notice of what the dispositive issues were in the review. The applicant could have further supported his claim orally at the hearing if he had wanted to. He did not do so.
The transcript[32] does not assist the applicants. No error in the Tribunal’s approach, at [25]-[26] of its reasons, is established, by reference to the transcript (or otherwise).
[32] Exhibit A1
As Gummow and Heydon JJ said in Re Minister for Immigration; Ex parte Applicant S154/2002,[33] it was for the applicant to “advance whatever evidence or argument [he] wished” and “for the Tribunal to decide whether [his] claim had been made out”.[34] The Tribunal is not required to make out the applicant’s case for him.[35]
[33] (2003) 201 ALR 437
[34] at [57], Gleeson CJ agreeing at [1]; see also Abebe v Commonwealth (1999) 197 CLR 510 at [187]
[35] Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170
One matter considered by the Tribunal, in assessing whether there were compelling reasons not to apply the Schedule 3 criteria,[36] was the applicant’s claim that three children were “physically, emotionally and financially” reliant on him.[37] This was a matter raised by the applicant in his written statement to the delegate[38] and CB 90 (Sponsor’s written statement).
[36] cf. [13] onwards of the Tribunal’s reasons
[37] see [25]-[26] of the Tribunal’s reasons
[38] see CB 88-89 (in particular, CB 89, first and second dot points)
The transcript of the Tribunal’s hearing shows that:
a)the Tribunal member repeatedly stated to the applicant that the question for the Tribunal’s consideration was whether there were any compelling reasons not to apply the Schedule 3 criteria, and invited the applicant to identify what those compelling reasons were;[39]
b)despite the numerous and repeated invitations given by the Tribunal for the applicant to identify the compelling reasons relied on by him, the applicant did not raise or discuss, in any detail, his claim that the children were “physically, emotionally and financially” reliant on him. At most, the applicant stated that he “[had] to stay there to fulfil my responsibility as a father”[40] and claimed that the Sponsor might not be able to support herself financially if he temporarily departed Australia;[41] and
c)the applicant did not give any evidence as to why he could not provide support to the children from overseas, eg. emotional support (eg. by maintaining relationships via methods such as telephone and FaceTime), or obtaining employment while overseas so as to provide some financial support to the Sponsor.
[39] see Transcript (Tr) 5.36-38; 10.35-36; 12.30-31; 14.14-15; 18.4-5; 18.23-24; 19.31; 19.44-45; 20.7-9; 20.32-35; 23.6-7; 23.29-30; 25.8-9
[40] Tr 5.41-42
[41] Tr 11.33-12.18; 14.22-24; 17.33-40
In considering the applicant’s claim, the Tribunal observed, at [25], that there was “little evidence” before it “to indicate that the children rely on him”. No error in that statement is established. The written statements (noted above) do not provide any detail about their alleged “reliance” on the applicant, and, as explained immediately above, the transcript of the Tribunal’s hearing shows that the applicant did not provide any detailed further evidence to the Tribunal about the claim, despite having the opportunity to do so.[42] There, the Tribunal was satisfied that the applicant could still maintain a relationship with the children while overseas and provide emotional support in this way. The Tribunal also observed that there was “little evidence” to satisfy it that the Sponsor, or the children, would be “adversely affected” by any temporary withdrawal of physical support. In relation to the financial support allegedly provided, the Tribunal observed that there was “no obvious reason” that the applicant could not obtain employment overseas, and to provide financial support in this way.[43]
[42] See also [26] of the Tribunal’s reasons
[43] See also [29], where the Tribunal further considers this issue and was not satisfied that any financial hardship would arise
In my opinion, the Tribunal did the best it could with the limited information it had.
Conclusion
The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 November 2019
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