Wang v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 534

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Wang v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 534 

File number(s):	BRG 168 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	19 March 2025
Catchwords:	MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	51
Date of last submission/s:	19 March 2025
Date of hearing:	19 March 2025
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Ms Tran of Sparke Helmore Lawyers
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

BRG 168 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

YUEHAI WANG

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	19 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the Second Respondent be amended to read ‘Administrative Review Tribunal.’

2.The Application filed on 14 April 2023 is dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the Application fixed in the sum of $8,371.30.

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
(Ex Tempore)

JUDGE VASTA

1. On 14 March 2023 the Administrative Appeals Tribunal (“AAT”/Tribunal) affirmed a decision not to grant the Applicant, Yuehai Wang a partner visa.  On the 14 April 2023, the Applicant asked this Court to review that decision.  Unfortunately, it has become quite evident that the Applicant did not understand what the purpose of a review was, nor had he truly read and understood the decision of the AAT.

2. The background to the matter is that the Applicant is a citizen of China.  On 19 October 2018, the Applicant made this application for a partner visa.  This application was based on the Applicant’s claim that he had a genuine spousal relationship with a permanent resident of Australia, Ms WC.  As I explained to the Applicant, during the course of the hearing, not only must he and the sponsor be in a genuine spousal relationship at the time they make the application, but they must also be in such a relationship when it is time for the decision to be made by the Department or the AAT.

3. On 31 December 2018, which was 10 weeks after the Applicant made his application, the sponsor withdrew her sponsorship.  This was conveyed to the Department, who then contacted the Applicant, and a hearing was conducted soon afterwards.

4. On 11 March 2019, the delegate refused to grant the Applicant the spousal visa.  The Applicant asked the AAT to have another look at the matter to decide whether he should get a spousal visa. 

5. It took until 14 September 2021 before the AAT could have a hearing.  In that hearing, the Applicant called two other witnesses to give evidence to the Tribunal.  The Applicant requested that the Tribunal issue summonses to the Queensland Police Service and to DV Connect.

6. The AAT then gave the Applicant until 30 September 2021 to provide any further information he wished to put before the Tribunal.  The AAT member, who had conducted the hearing on 14 September, left the Tribunal before he could make a decision in this matter.

7. The AAT member who had heard the matter in September 2021 then left the employment of the AAT.  When he had left the AAT, he had not yet delivered a decision in this matter.

8. On 22 November 2022, the AAT administration told the Applicant that there would be a new AAT member looking at his matter, but they would be using all of the material that had already been submitted.  The Tribunal gave the Applicant until 6 December 2022 to give any further information to the Tribunal.

9. The Tribunal then reviewed all of the evidence, as well as played back the recording of the hearing that was conducted in September 2021.  On all of that material, the AAT made its decision. 

10. The AAT told the Applicant that it had found that the Applicant and the sponsor were no longer in a genuine spousal relationship.  The AAT noted that a partner visa could still be given if the AAT was of the opinion that the applicant had made a valid claim that he had suffered family violence at the hands of the sponsor.

11. The Applicant was told by the Tribunal how it was that he could make such a claim.  The AAT noted that the detail had already been provided to the Applicant by the Department.  The Tribunal said to the Applicant that:

    To make a valid claim, you must provide certain documents, that is certain types of evidence…So you must provide a statutory declaration from yourself, and you must provide two types of evidence that are listed in schedule 1.  The types of evidence must be in the form described in the schedule and it must contain the details as specified in the schedule…

    If you do not provide the necessary forms, with the necessary information, then the tribunal has no alternative but to affirm the decision under review.  If you do provide the documentation to substantiate a valid claim, the tribunal will then consider the claim.  If it is satisfied you suffered family violence, it will send its decision back to the Department for further consideration.  The tribunal may also decide to seek the opinion of an expert, in which case, if it seeks that opinion, the tribunal would be bound by the expert’s opinion.  If the tribunal seeks an opinion, you will have an opportunity to respond to that opinion should it not be favourable before the decision is made.

12. The Tribunal said that it was satisfied that the Applicant was on notice, from 14 September 2021, that he had to make a valid claim of non-judicial family violence or the Tribunal would simply have no alternative but to affirm the decision.  The Tribunal noted that, under reg 1.23, a visa application for a non-judicially determined claim of family violence needed certain evidence.  The Applicant was required to provide to the Tribunal a statutory declaration under reg 1.25 and the type and number of items specified in IMMI12/116.  The different types of following evidence were listed in IMMI12/116 and were reproduced at paragraph 48 of the Tribunal decision.

13. The Applicant had provided correspondence from the organisation, DVConnect Men’s Line.  The Applicant also provided a copy of Queensland Police report number QP1802418124.  The Tribunal came to the view that this material did not meet the requirements of IMMI12/116.  Because that material did not meet the requirements of IMMI12/116, it meant that the Applicant had not made a valid claim.

14. As the AAT had said to the Applicant, on 14 September 2021, if the Applicant did not make a valid claim of family violence, then it would have no option but to affirm the decision.  Therefore, there was no evidence that the Applicant came within the exception for the grant of a partner visa. 

15. For this reason, the Tribunal affirmed the decision not to grant the Applicant the partner visa.

16. The Applicant appeared before me today unrepresented.  He was assisted by an interpreter, but he often spoke over the top of the interpreter and interrupted her interpretations to me.  He was quite keen to interrupt on many occasions and I had to inform him that this was not appropriate behaviour in Court, albeit that he was appearing by telephone.

17. He proceeded, on this application, upon a premise that the AAT had simply not accepted any of his evidence and had made a decision that he not be granted a visa because they rejected his story that he was a victim of family violence. 

18. He also proceeded on the premise that he could call witnesses and give evidence as if this were a rerun of the AAT hearing, Despite my telling him, on at least four occasions, that the AAT did not embark upon a merits examination of his case, but had decided it on the basis that he had not made a valid claim, the Applicant nevertheless kept making submissions that the AAT had disbelieved his evidence.  It took quite some time to try and get the Applicant onto the right track and not off on the many tangents upon which he has tried to litigate this application.

19. Eventually, I was able to ascertain that there were some proper grounds for the application for review.

20. The first ground was that the AAT did not allow him to issue subpoena or summons or, more correctly, they did not issue a subpoena or summons themselves.  The first summons (he wished to have the AAT issue) was to the constable of police who arrived at the residence of him and his wife back in the latter part of 2018.  The AAT noted that this particular officer was no longer a member of the Queensland Police Service and had since relocated to New Zealand.  Even if the AAT had thought that it was proper to issue a summons, it could not do so because it did not have the power to summons a witness who was not in Australia.

21. The summons, though, sought to have the constable tell the Court that, when the Applicant and the sponsor had their argument, the sponsor went to the police and made a complaint. 

22. According to the material before the AAT, the sponsor gave details of the family violence that she alleged that the Applicant had committed, and she told police she wanted him out of the house.  The police spoke to the Applicant, who admitted that he had committed the acts that the sponsor said that he had committed.  The police then issued a domestic violence order of a temporary nature against the Applicant.  The sponsor gave police $400 for them to give to the Applicant so that he could pay for a motel room, and that the sponsor said that when the Applicant’s credit card or bank card would arrive, she would forward it to him wherever he was staying. 

23. As I have just noted, all of this information was contained already on the QP report.  What the Applicant wished was for the constable to say that he, the Applicant, had to leave the spousal home, because the sponsor ordered him to.  The Applicant wanted to claim that this form of “ouster order” was a form of family violence perpetrated upon him by the sponsor. 

24. The Tribunal said that it was not for them to provide witnesses for the Applicant, and it was for the Applicant to have arranged, himself, for these witnesses to be in attendance. 

25. There is no obligation upon the Tribunal to call witnesses.  It is well within the discretion of the Tribunal to either call witnesses or to not call witnesses.  It is also well within the discretion of the Tribunal to issue a summons or a subpoena or not to issue a summons or subpoena.  In this case, the Tribunal refused to issue any subpoena or summons to the police officer.

26. Having regard to all of the circumstances, especially the one that the Tribunal already had the information before it, it cannot be said that this refusal was unreasonable.  This ground, therefore, fails.

27. The AAT also refused to issue a subpoena to someone from DVConnect.  Again, the Tribunal had information from DVConnect already before it.  Again, it was a matter of discretion as to whether the Tribunal issued such a subpoena to DVConnect.  The discretion that was exercised in this case was not unreasonable.  This ground also fails.

28. The Applicant argued that he could have fulfilled IMMI12/116 if those summonses had been issued.  I do not accept that this is the case.  The correspondence from DVConnect said that the Applicant “claimed” that he was the aggrieved in a family violence matter and his wife was the perpetrator of violence.  Any person who gave evidence of that nature would not be fulfilling the categories in IMMI12/116. 

29. Similarly, any constable, who gave evidence in accordance with the report that had been made, would not be fulfilling the categories in IMMI12/116. 

30. This is because the language of IMMI12/116 decrees that the evidence must be in the form of witness statements, statutory declarations, reports or letters on official letterhead.  Verbal evidence, even on oath, would be insufficient to comply with IMMI12/116.

31. The Applicant's next ground was that the AAT had erred in not requesting, for themselves, an expert report.  There are two issues with this ground.  Firstly, whether to order an independent expert report is a discretionary power given to the Tribunal.  It is not mandatory, as the Applicant seems to believe it is. But, secondly, and more importantly, it cannot be ordered unless it is that the AAT has a valid claim of family violence before it.  The Tribunal had not had a valid claim before it, because the Applicant had not complied with the statutory instrument.  Therefore, the Tribunal did not have the power to order an independent expert report.  Therefore, this part of the claim fails.

32. The Applicant also claimed that the AAT had breached the rules of natural justice, because they did not give him the statement of the sponsor when she withdrew her sponsorship. 

33. The record shows that they did give the Applicant that document, but redacted it so that where it is that she is now residing, would not be able to be discerned; however, this statement would only be relevant if it were that the Tribunal was debating the merits of whether there had been family violence inflicted by the sponsor on the Applicant.  Because the Applicant had not made a valid claim, this meant that the statement of the sponsor was not relevant to the Tribunal’s decision, nor was it relevant for the Applicant to have. 

34. For those reasons, this claim also fails.

35. For the sake of completeness, I should note that the Tribunal still considered the police report and the DVConnect correspondence so see whether it could comply with the requirements of IMMI12/116. The reasoning of the Tribunal is, in my view, correct.

36. The application, filed on 14 April 2023, did list 13 “grounds”.  Whilst these matters weren't relied upon today, they were not abandoned either; and so, I need to work through them seriatim.

37. The first ground is

    1.The Applicant sustained work-related injuries in Australia, The Applicant right to request a stay of proceedings order to stay in Australia to resolve the work-related issues. Because, the Applicant has the same basic workplace rights and protections, regardless of citizenship or visa status

38. The applicant may have a right to request a stay of proceedings, but it is not a right that he receive a stay of proceedings. This does not illustrate any jurisdictional error.

39. The second is

    2.The First Respondent's decision dated 11 March 2019 relied on irrelevant and incorrect materials, because the First Respondent relied on an invalid withdraw/ cancelling sponsorship application and there are (sic) incorrect information in the invalid application.

40. This is a complaint about the delegate's decision, and it is not something that is reviewable by this Court.  This ground fails.

41. The third ground is

    3.The First Respondent erred in failing to provide the application of withdraw/cancelling sponsorship and the supporting evidence to the Applicant before made the decision dated 11 March 2019.

42. Again, this deals with the decision of the delegate and is not reviewable by this Court.  The ground fails.

43. The fourth ground is

    4.The Second Respondent relied on incorrect information to make the decision dated 14 March 2023, because, the Second Respondent relied on the DIBP Reference(s): BCC2018/4586799. However, the Applicant has no files in DIBP, because the DIBP already was an inexistent organization before Applicant lodged the partner visa application on 19 October 2018.

44. This is a misapprehension by the Applicant, because there will always be a Minister in charge of immigration, despite the many name changes of the Department.  The information stays within the Department even if the Department changes names. This ground does not illustrate jurisdictional error and it fails.

45. The grounds 5, 6, 7, 8, 9 have already been dealt with by me in looking at the Applicant's grounds for which he made oral submissions.

46. Ground 10 is

    10.The Second Respondent erred in failing to take into account, or has not given enough weight of consideration of, the evidence provided by the Applicant in the hearing dated 14 September 2021.

47. The basis of this ground is the misapprehension that the AAT considered the merits of whether there had been family violence that had occurred.  As I have said a number of times today, there was no such determination on the merits.  So, the basis of ground 10 does not exist, therefore, that ground fails.  The same reasoning applies to grounds 11 and 12.

48. Ground 13 was a ground that dealt with the provision of the expert report, which I have already gone through in these reasons.  Ground 13 also fails. 

49. Whilst it has been very difficult to confine this matter to relevant considerations for a review, I have independently looked thoroughly at the reasons given by the Tribunal.  I have considered that the Tribunal was correct when they concluded that the information provided by the Applicant did not fit the requirements of IMMI12/116. 

50. Therefore, the Tribunal was correct when it found that the Applicant had not made a valid claim that he had been the victim of family violence inflicted upon him at the hands of the sponsor.  In the absence of the valid claim, the Tribunal had no choice but to affirm the decision of the delegate.

51. Therefore, the application filed on 14 April 2023, and amended on 14 February 2025, and further amended on 15 February 2025, is dismissed with costs fixed in the sum of $8,371.30.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       19 March 2025