WANG v Minister for Immigration

[2015] FCCA 589

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 589

Catchwords:
MIGRATION – Migration Review Tribunal – partner (residence) (class BS) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.5F(2)(b), 5F(2)(c), 35F(2)(d), 57A(3), 362B(2), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: YINGXI WANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 392 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Mr Glavac
Clayton Utz

ORDERS

1. The Application be summarily dismissed.

2. The Applicant to pay for First Respondent’s Costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 392 of 2015

YINGXI WANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court and its jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal, delivered on 22 January 2015, affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa.  The matter was listed before the Court today, and the application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

2. The applicant has not appeared, and the matter has been called outside the Court. 

3. The solicitor for the respondent who attempted to contact the solicitors for the applicant, identified on the application without success.  Having had the matter called the Court is squarely in the position where the Court can exercise the powers conferred under r.13.03C for default of appearance.  In this case, the Court has looked at the application and read the decision of the Tribunal, and is of the view that the proceedings appear doomed to failure and do not disclose any arguable jurisdictional error.  It is, in those circumstances, appropriate to consider application of s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) in respect of the failure of the applicant to appear.

4. I take into account the principles and caution in relation to the Court’s summary powers identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

5. The grounds of the application are as follows:

   1. The applicant is applying for judicial review on the ground that the Migration Review Tribunal (MRT) failed to conduct its proceedings in a way that is fair and just pursuant to Section 357A(3) of the Migration Act 1958 (Cth). The Federal Court of Australia in Khant v Minister for Immigration and Citizenship [2009] FCA 1247 had indicated that although this statutory requirement did not express an intention for common law procedural fairness to apply, it nonetheless imports a requirement that the tribunal must apply the natural justice requirements as prescribed in a way that is just and fair.

   2. The applicant is also applying on the ground that under Section 362B(2) of the Migration Act 1958 (Cth), the Tribunal has discretion to reschedule the applicant’s appearance before it, or to delay its decision on the review in order to enable the applicant’s appearance before it as rescheduled, given that the primary decision does not have to be reviewed within a prescribed timeframe pursuant to ss338(4) and 367 of the Migration Act 1958 (Cth). It is submitted that it is unreasonable for the tribunal to fail to reschedule the applicant’s appearance or delay its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

   Given the lack of response from the applicant following the Tribunal’s response on 11 December 2014 for a period spanning more than a month, until 20 January 2015, it is reasonable to suggest that the applicant was not wary of what was required of him and was intimidated by the hearing process. In addition, it is submitted that the tribunal did not make it clear to him that he could be assisted by another person while appearing before the tribunal pursuant to 366A of the Migration Act 1958 (Cth), or even have an interpreter at the hearing pursuant to 366C of the Act.

   These factors indicate that under the requirements of natural justice, the Tribunal should have rescheduled the hearing or delayed its decision, rather than reach an immediate decision that is potentially unjust. As such, it is also claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958 (Cth).

6. It is clear that the above grounds identify no jurisdictional error, and for the reasons given by the Tribunal there is no substance in the grounds raised in respect of the generalised allegation concerning s.357A(3), or s.362B(2).

7. The Tribunal noted that the applicant applied for a visa on 28 June 2012 in the nature of a Partner (Residence) (Class BS) visa, which was refused by the delegate on 5 December 2013.  The Tribunal noted that the delegate refused to grant the visa on the basis the applicant did not satisfy clause 801.221(2), because the sponsoring partner had withdrawn her sponsorship of the applicant, and he no longer continued to be her spouse. 

8. On 11 December 2014 the Tribunal wrote to the applicant’s representatives, advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on the information alone.  The Tribunal invited the applicant, through his authorised recipient, to give oral evidence and present arguments on 20 January 2015.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. 

9. The review applicant did not appear before the Tribunal on the day, and at the time and place at which he was scheduled to appear.  No response was received to the Tribunal’s response to hearing invitation, or to the Tribunal’s suggestion that any additional documents or information he might wish to rely on be provided to the Tribunal by 13 January 2015.  It was in these circumstances, and pursuant to s.362B of the Act, that the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

10. I am clearly satisfied that it was open to the Tribunal, properly exercising its powers under s.362B, to proceed to hear the matter in those circumstances.  The Tribunal noted that the issue in the present case is where the applicant continues to be sponsored for the grant of a subclass 801 visa by his sponsoring partner, who is an Australian citizen.  The Tribunal found that it was satisfied that the sponsor is no longer the sponsoring partner of the applicant.  The Tribunal accepted the parties were legally married on 6 May 2012, and that the relationship endured for some time. However, there was evidence before the Tribunal that the sponsor had withdrawn her sponsorship of the applicant, indicating the parties do not see the marriage as long term. 

11. The Tribunal said it was not satisfied that at the time of the decision, the parties had a mutual commitment to a shared life, to the exclusion of all others, and that the relationship was genuine and continuing. The Tribunal found that the parties therefore do not meet the requirements of s.5F(2)(b), and s.5F(2)(c) of the Act. The Tribunal said it was not satisfied that at the time of the decision the parties met the requirements for a married relationship, in that the parties live together, or do not live separately and apart on a permanent basis. The Tribunal found they do not meet the criteria under s.5F(2)(d) of the Act.

12. It was in these circumstances the Tribunal found that it was not satisfied that, at the time of the decision, the applicant is the spouse of the sponsoring partner, and that the applicant continues to be sponsored by the sponsoring partner, and the Tribunal therefore found the applicant did not meet clause 801.221(2).  The Tribunal noted that the applicant had not claimed, and there was no evidence before the Tribunal, that the applicant met any other relevant criteria.  It was in those circumstances that the applicant was found not to satisfy the criteria for the grant of a visa, and the decision of the Tribunal was affirmed. 

13. It is clear that the applicant was given proper notice of the hearing by the Tribunal, and it is clear that it was open to the Tribunal, in those circumstances, to proceed to deal with the application, and doing so cannot be said to be a contravention of s.357A(3).  The Tribunal plainly considered whether or not to exercise its powers to adjourn the matter, and formed a view that it should continue to conduct the review.  It was clearly within the jurisdiction of the Tribunal to come to that decision, and there is nothing before the Court to identify that there is any substance in the alleged grounds in the application. 

14. I am satisfied that the grounds in the application are doomed to failure.  I am satisfied the proceedings have no reasonable prospect of success.  It is in these circumstances, and in default of appearance, that the proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 March 2015