Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1091
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091
File number(s): PEG 23 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 20 May 2021 Catchwords: MIGRATION – Judicial review – Partner (Residence) (Class BS) visa – whether PIC 4020(4)(b) correctly applied – compassionate or compelling circumstances - whether compassionate or compelling circumstances treated conjunctively or disjunctively – whether error in failing to make finding as to nature of relationship between applicant wife and her husband resulted in error in assessing compassionate circumstances - whether error in finding that applicant’s partner would experience more limited religious freedom rather than persecution on basis of religious beliefs in China - whether jurisdictional error – writs issued
WORDS AND PHRASES – “or”
Legislation: Migration Act 1958 (Cth) ss 5, 5F, 65, 476.
Migration Regulations 1994 (Cth) reg 1.15A, Sch 2, cll 801.221, 801.226, Sch 4, cl 4020.
Cases cited: Fobizi v Minister for Immigration & Anor [2017] FCCA; (2017) 323 FLR 226
He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17
Ibrahim v Minister for Immigration and Border Protection [2017] FCCA 882
Javed v Minister for Immigration & Anor [2019] FCCA 2591
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184, (2017) 256 FCR 235, (2017) 73 AAR 380
Kaur v Minister for Immigration and Border Protection [2018] FCCA 1614; (2018) 334 FLR 281
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559
Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
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 Multicultural Affairs v Asif [2000] FCA 228; (2000) 60 ALD 145
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1997) 73 ALJR 746; (1997) 162 ALR 577; (1997) 54 ALD 289
Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788
R v Surrey Quarter Sessions, ex parte Commissioner of Metropolitan Police [1963] 1 QB 99
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285
Singh v Minister for Immigration and Border Protection [2017] FCCA 2461; (2017) 325 FLR 275
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
Uddin v Associated Portland Cement Manufacturers, Ltd [1965] 2 QB 582
Number of paragraphs: 55 Date of last submission/s: 8 April 2021 Date of hearing: 8 April 2021 Place: Perth Counsel for the Applicants: Mr D V Blades Solicitor for the Applicants: Munro Doig Lawyers Counsel for the First Respondent: Ms S J Oliver Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 23 of 2020 BETWEEN: YUELI WU
First Applicant
YANLING WU
Second 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:
20 MAY 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made on 6 January 2020.
2.A writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicants on 22 November 2016 according to law.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The applicants lodged an application in this Court on 21 January 2020 seeking judicial review (“Judicial Review Application”) of a 6 January 2020 decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the first applicant (“Ms Wu”) a Partner (Residence) (Class BS) (Subclass 801) visa (“Partner Visa”).
In accordance with orders made by the Court the applicants filed an amended Judicial Review Application on 22 June 2020 (“Amended Judicial Review Application”).
The Amended Judicial Review Application contained six grounds of review. Only the first three grounds were pursued at hearing. The grounds of the Amended Judicial Review Application are set out below, in the order that they were argued by the applicants, with ground 1 at [7], ground 3 at [18], and ground 2 at [41].
BACKGROUND
The relevant background to the matter is as follows:
(a)Ms Wu is a citizen of the People’s Republic of China. The second applicant is Ms Wu’s daughter. Ms Wu’s husband, Mr Lai Shing Kow (“Mr Kow”), was her Partner Visa sponsor;
(b)Ms Wu applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and the Partner Visa on 22 May 2013: Court Book (“CB”) 1-23. The application for the permanent stage of the Partner Visa was made on 1 May 2015: CB 24-57. Included in the application were certified copies of documents relating to the purchase of a property at Brown Street, East Perth (“Franzone Documents” and “East Perth Property” respectively). The Franzone Documents, which included a Contract for Sale of land or strata title, and a Terms and Conditions for Sale document, stated that the East Perth Property was purchased by both Ms Wu and Mr Kow: CB 19-23;
(c)the Delegate’s Decision was made on 22 November 2016. The applicants sought review of the Delegate’s Decision in the Tribunal on 6 June 2018: CB 91-93;
(d)on 11 March 2019, the Tribunal sent Ms Wu an invitation to comment on or respond to information: CB 200-205, which suggested that the Franzone Documents had been altered, specifically so as to include Mr Kow as a purchaser of the East Perth Property. The Tribunal informed Ms Wu that it may find that she had provided information that was false or misleading in a material particular in relation to the Partner Visa application, and that if the Tribunal relied on the information in making its decision, it may find that Ms Wu fails to meet the Public Interest Criteria (“PIC”) in cl 4020(1) (“PIC 4020”) of Sch 4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) required for the grant of the Partner Visa; and
(e)on 13 March 2019, the Tribunal sent Ms Wu an invitation to provide information relating to the waiver of PIC 4020(1) under PIC 4020(4) of Sch 4 to the Migration Regulations: CB 211-214.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal made the following relevant findings:
(a)in the Franzone Documents Ms Wu had provided a number of bogus documents in support of the Partner Visa application : CB 948-951 at [109]-[125], and had provided information that was false or misleading in a material particular: CB 951-954 at [126]-[146];
(b)that the applicants’ then migration agent certified and submitted the bogus documents, and that Ms Wu was, if not complicit in the fraud, at least indifferent to it: CB 945-948 at [88]-[108]; and
(c)that there were compelling circumstances which arose on the evidence, but that those circumstances were insufficient to justify the grant of the Partner Visa, and therefore did not warrant the exercise of the Tribunal’s discretion to waive the requirements of PIC 4020(1): CB 954-960 at [148]-[182].
JURISDICTIONAL ERROR REQUIRED
The Tribunal Decision may be set aside on judicial review on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in 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, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see the relevant principles in relation to legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”), and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”), as summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
GROUND 1
Ground 1 of the Amended Judicial Review Application is as follows:
1. The Administrative Appeals Tribunal erred in finding (at paragraph 172 of its Decision Record, CB 958) that in order to waive the requirements of clause 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth) (“Regulations”) that the compassionate circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen (as set out in clause 4020(4)(b)) must also be compelling. As a result, the Tribunal was unable to properly exercise its discretion to waive clause 4020(1) under clause 4020(4).
PARTICULARS
a. PIC 4020(4)(a) and (4)(b) specify different tests. Paragraph (4)(a) requires that the Minister be satisfied that there are “compelling circumstances” to enliven the application of the Minister’s discretion. Secondly, in contrast, PIC 4020(4)(b) provides that the application of the Minister’s discretion is enlivened if the Minister is satisfied that “compassionate or compelling circumstances” exist in relation to the interests of (inter alia) an Australian citizen. In context, the use of the disjunctive “or” in paragraph 4(b) directs that the terms “compassionate” and “compelling” are independent concepts, and thus the paragraph provides for the Minister to be satisfied of the existence of either of two circumstances, each having a different character. As the ordinary meanings of the words and judicial consideration of the terms establishes, in the context of PIC 4020(4)(b) in order to be satisfied that “compassionate circumstances” exist the decision maker is not required to be satisfied the circumstances are “compelling” or that he or she is “compelled” to the necessary state of satisfaction, nor need “compelling circumstances” elicit compassion to satisfy the decision maker.
(As held by Judge Baird in Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 1614, at [29])
Applicants’ Submissions
The applicants’ submissions can be summarised as follows:
(a)the Tribunal was satisfied that evidence established compassionate circumstances that affect the interests of Mr Kow, his children and grandchildren;
(b)the Tribunal’s reasons clearly show that it added the requirement that in addition to being compassionate, the circumstances affecting the interests of Mr Kow, his children and grandchildren must also be compelling;
(c)the Tribunal found that there were compassionate circumstances, but at CB 958-959 at [172] also introduced a requirement that the compassionate circumstances also had to be compelling by requiring that the circumstances be compassionate and compelling, and the Tribunal thereby made an error; and
(d)the Tribunal did highlight the correct test several times, for example, in the Tribunal’s conclusion at CB 959 at [177], where the Tribunal set out compassionate “or” compelling circumstances test, but it applied a compassionate “and” compelling circumstances test, which is the wrong test, in refusing to grant the Partner Visa.
Minister’s Submissions
The Minister’s submissions were as follows:
(a)because the Tribunal considered whether the compassionate circumstances it had accepted justified the waiver of the requirements of PIC 4020(1) of Sch 4 to the Migration Regulations this indicates that it did not conflate the requirements, and there is no basis to infer that the Tribunal conflated the requirement that circumstances must be compassionate or compelling;
(b)the Tribunal concluded that there were compassionate circumstances, and then went on to consider whether there were also compelling circumstances. Having concluded there were not compelling circumstances it returned to deal with the exercise of the discretion in relation to the compassionate circumstances alone: CB 959 at [173]-[178]. If the Tribunal had conflated the compassionate and compelling requirements, it would not have returned to deal discretely with the discretion in relation to the compassionate circumstances; and
(c)the Tribunal Decision, when read as a whole, and without an eye in search of error, shows that the Tribunal understood the test to be applied, and that that test was applied properly.
Consideration – ground 1
PIC 4020(1) and (4) of Schedule 4 to the Migration Regulations are as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
The Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184, (2017) 256 FCR 235, (2017) 73 AAR 380 at [26] per Dowsett, Pagone and Burley JJ, which was relied on by the Tribunal: CB 959 at [173], discussed the inquiry under PIC 4020(4) of Sch 4 to the Migration Regulations, as follows:
26. Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
The appropriate inquiry under PIC 4020(4) (a) or (b) of Sch 4 to the Migration Regulations is a two-stage inquiry. The first stage of the inquiry through PIC 4020(4)(b) of Sch 4 to the Migration Regulations is to consider whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The word “or” is ordinarily treated as being disjunctive: Uddin v Associated Portland Cement Manufacturers, Ltd [1965] 2 QB 582; R v Surrey Quarter Sessions, ex parte Commissioner of Metropolitan Police [1963] 1 QB 99. In this case that means that the circumstances identified by a decision-maker are not required to be both compassionate “and” compelling: Kaur v Minister for Immigration and Border Protection [2018] FCCA 1614; (2018) 334 FLR 281. The second stage is discretionary. It requires a decision-maker to consider whether the compassionate or compelling circumstances identified in the first step justify the grant of the Partner Visa.
The Tribunal’s reasons insofar as they relate to ground 1 can be summarised as follows:
(a)the Tribunal was satisfied that the evidence established the existence of compassionate circumstances that affect the interests of:
(i)Mr Kow, on the basis of his potential separation from either Ms Wu in China, or his children and grandchildren in Australia, and further on the basis that relocating to or travelling to China would involve financial and personal hardship for Mr Kow: CB 958 at [168]; and
(ii)Mr Kow’s children and grandchildren because their potential separation from Mr Kow for an extended period would have a negative impact on them socially and emotionally: CB 958 at [169];
(b)the Tribunal was not satisfied that the evidence established that there were compelling circumstances: CB 958-959 at [172];
(c)that having been satisfied that compassionate circumstances arose on the evidence, the Tribunal considered its discretion to waive the requirements of PIC 4020(1) of Schedule 4 to the Migration Regulations. The Tribunal was not satisfied that the compassionate circumstances established on the evidence were sufficient to justify the granting of the Partner Visa, and, therefore, did not exercise its discretion to waive PIC 4020(1) of Sch 4 to the Migration Regulations. The Tribunal referred to the public policy considerations where a serious allegation of fraud is made out. The Tribunal placed substantial weight on its findings that Ms Wu’s provision of false and misleading information to the Department was “not an innocent mistake”: CB 959 at [175], and that she had “fabricated her evidence … on a number of occasions including in a sworn statement”: CB 959 at [175], and that these were matters “which must be regarded seriously”: CB 959 at [176]; and
(d)having acknowledged that the exercise of the relevant discretion involved “a balancing of various factors”, and having “considered all the circumstances”, was not satisfied that the requirements of PIC 4020(1) of Sch 4 to the Migration Regulations ought to be waived: CB 959 at [177].
It is useful to set out three paragraphs from the Tribunal Decision at CB 958-959 at [172]-[174] with respect to the exercise and waiver of the relevant discretion:
172. As noted above, to be compelling the circumstances must force or drive the decision-maker irresistibly to be satisfied. This requirement limits the circumstances to those which have a special or strong persuasive force: Singh v MIBP [2016] FCA 156 (North J, 22 February 2016). While the Tribunal is satisfied that compassionate circumstances exist that affect the interests of Mr Kow and his children and grandchildren, having regard to all the evidence including the cumulative claims made, the Tribunal is not satisfied that those circumstances are compelling. While Mr Kow’s circumstances and those of his immediate family members generate feelings of sympathy, they do not force or drive the Tribunal irresistibly to be satisfied that the visa must be granted. Further, for this reason and for those outlined above, the Tribunal does not regard the circumstances relating to Mr Kow’s children and grandchildren, his sisters and brothers or the employees of the company and their respective families as compelling within the meaning of PIC4020(4)(b).
173. The issue of whether the Tribunal waives the requirement in PIC 4020(1) is discretionary. Being satisfied that there are ‘compassionate circumstances’ affecting the interests of Mr Kow, the Tribunal must give careful consideration as to how it exercises the discretion in the circumstances of this case: see Kaur v MIBP [2017] FCAFC 184, para 26.
174. The Tribunal is not satisfied that those circumstances are sufficient to justify the granting of the visa and therefore to exercise the discretion to waive PIC 4020(1). The Tribunal has come to this view for a number of reasons.
There is no ambiguity in this aspect of the reasoning in the Tribunal Decision. The Tribunal simply considered the exercise of the discretion in relation to compassionate circumstances, which it had accepted existed: CB 958 at [168]-[169]. As the Tribunal had only identified compassionate circumstances it only referred to compassionate circumstances in its consideration of the discretion: CB 959 at [173]. Compelling circumstances, which it had found to not exist: CB 958-959 at [172], were therefore simply not considered in relation to how, or whether, the Tribunal ought to exercise the discretion. There was no error in the Tribunal’s approach in this regard.
The applicants submitted that at CB 958 at [172] the Tribunal added a requirement that the circumstances also be “compelling” because it had already found that the circumstances were “compassionate”, and that it was not open to the Tribunal to do so. The paragraph at CB 958 at [172] is simply the Tribunal recording its reasons with respect to whether there were compelling circumstances, as it had to do having regard to the relevant criteria in PIC 4020(4)(a) and (b) of Sch 4 to the Migration Regulations. To suggest that the Tribunal added a requirement that the circumstances it found to be compassionate had to also be compelling is incorrect. The Tribunal finding at CB 958 at [172] that there were no compelling circumstances was simply part of the first stage of the relevant inquiry. The applicants’ argument falls in on itself. Once the central tenet of the applicants’ argument that PIC 4020(1)(b) of Sch 4 to the Migration Regulations requires circumstances to be compassionate or compelling, not both, has been accepted, it cannot then be said that the Tribunal made an error by setting out its findings with respect to both types of circumstances.
For the above reasons ground 1 of the Amended Judicial Review Application is not made out.
GROUND 3
Ground 3 of the Amended Judicial Review Application is as follows:
3. The Tribunal erred in its exercise of its discretion to waive clause 4020(1) under clause 4020(4) by failing to make a finding as to the nature of the relationship between the First Applicant and Mr Kow thereby affecting the Tribunal’s ability to properly take the nature of the relationship into account, for example, the level of dependency Mr Kow had on the First Applicant, and thereby making it impossible for the Tribunal to exercise its discretion properly.
PARTICULARS
a. The Tribunal stated at [163] (CB 957) that, in considering the circumstances of the sponsor, Mr Kow, that it “…has not assessed in detail the nature of the parties’ relationship for the purpose of satisfying the spousal relationship requirements for the grant of the visa.”
b. Further, the Tribunal made no finding on whether the parties are in a genuine spousal relationship.
c. Mr Kow made submissions to the Department and the Tribunal concerning, inter alia, his dependency on the Applicant: CB 18; CB 51 – 53; CB 67 – 68; CB 103 – 107; CB 388 – 394 at [9].
d. The First Applicant also gave written and oral evidence to the Department and Tribunal concerning the genuineness of the relationship, e.g. in her statutory declaration of 10 April 2019 (CB 242 – 256).
e. The Tribunal made a jurisdictional error by failing to make a finding on whether the parties are in a genuine spousal relationship and failing to properly consider the relevant evidence on that issue.
Applicants’ Submissions
The applicants’ submissions were as follows:
(a)the Tribunal set out a number of questions for determination. The question of whether Mr Wu and Mr Kow were in a spouse or de facto relationship was relegated to last in this list of questions. By taking this approach the Tribunal misdirected itself;
(b)the requirement that an applicant is the spouse or de facto partner of the sponsoring partner is at cl 801.221(2)(c) of Sch 2 to the Migration Regulations. The requirement that an applicant satisfies PIC 4020 of Sch 4 to the Migration Regulations is at cl 801.226 of Sch 2 to the Migration Regulations. These are separate criteria;
(c)the Tribunal acknowledged that it had not assessed in detail the nature of the relationship. Rather, it found that Ms Wu and Mr Kow “may” be in a genuine relationship. This is an insufficient basis for the task before the Tribunal under PIC 4020(4) of Sch 4 to the Migration Regulations. The balance of the Tribunal Decision shows that it did not satisfy itself of the genuineness of the relationship;
(d)the Tribunal failed to take into account Mr Kow’s degree of dependency upon Ms Wu and Mr Kow, and overlooked important evidence which would have supported a finding of dependency by Mr Kow upon Ms Wu. If the Tribunal had properly turned its mind to this question, and in particular the financial dependence of Mr Kow on Ms Wu, the Tribunal would have come to a different conclusion. This is, in effect, a failure to respond to an aspect of the claim made;
(e)by failing to make a finding as to as to the nature of the relationship between Ms Wu and Mr Kow the Tribunal’s ability to properly take the nature of the relationship into account for the purposes of PIC 4020(4) of Sch 4 to the Migration Regulations, for example the level of dependency Mr Kow had on Ms Wu, was affected; and
(f)in relation to whether it would be futile to remit the matter to the Tribunal, the Tribunal focused only on the bogus document issue, and did not deal with the primary criteria, and, therefore, if the matter were to be remitted the Tribunal would have to assess the primary criteria, and Ms Wu may yet obtain the Partner Visa.
Minister’s Submissions
The Minister’s submissions were as follows:
(a)because the Tribunal had found that the Franzone Documents were bogus it was not strictly necessary to make any finding of fact as to whether Ms Wu and Mr Kow might have been in a genuine spousal relationship, because, unless the Tribunal was satisfied that there were compassionate or compelling circumstances to justify the waiver of the requirements of PIC 4020 of Sch 4 to the Migration Regulations, the Tribunal could not find that the requirements for the grant of the Partner Visa had been satisfied;
(b)the Tribunal accepted that Ms Wu and Mr Kow might be in a genuine relationship, but only accepted it insofar as it was necessary for it to consider PIC 4020(4) of Sch 4 to the Migration Regulations;
(c)the Tribunal did consider the issue of financial dependency, and referred to CB 955-956 at [153], CB 956 at [156], CB 957 at [164] in the third sentence, and CB 958 at [168]; and
(d)the Tribunal had justifiable credibility concerns in relation to the evidence of Ms Wu and Mr Kow: see CB 957 at [163], and also CB 935-937 at [47]-[48].
Consideration – ground 3
The Tribunal’s consideration of a Partner Visa application such as Ms Wu’s would ordinarily entail consideration of s 5F of the Migration Act, reg 1.15A of the Migration Regulations, and the relevant criteria, here cll 801.221 and 801.226 of Sch 2 to the Migration Regulations.
Section 5F of the Migration Act provides as follows:
(1)For the purposes of this Act, a person is the spouse of another person 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 husband and wife 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.
The Migration Regulations do make provision in relation to the determination of certain matters as envisaged by s 5F(3) of the Migration Act, and, thus, reg l.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).
Clause 801.221(2) of Sch 2 to the Migration Regulations relevantly provides that an applicant meets the requirements of the sub-clause if:
(c) the applicant is the spouse or de facto partner of the sponsoring partner; …
Clause 801.226 of Sch 2 to the Migration Regulations requires that an applicant satisfy PIC 4020 of Sch 4 to the Migration Regulations (which is relevantly set out at [10] above).
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: 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); Fobizi v Minister for Immigration & Anor [2017] FCCA; (2017) 323 FLR 226 (“Fobizi”) 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 .
In Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788 (“Nassouh”) in relation to the obligation imposed upon the Tribunal the Federal Court said that reg 1.15A(3) of the Migration Regulations “… 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 at [10] per Katz J. The Federal Court went on to observe that in relation to the criteria said not to have been considered in Nassouh that the Tribunal “… made no reference to that evidence [of the relevant criteria] and further made no findings of fact as to the financial aspects of the Nassouh relationship or the nature of the Nassouh household as of the date with which it was concerning itself …”: Nassouh at [21] per Katz J.
In Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228; (2000) 60 ALD 145 (“Asif”) the Full Court of the Federal Court dealt with a case in which an applicant had lied to a departmental officer about his marital status (saying he was single) just four weeks after he had been married, and the Tribunal fastened upon that falsehood to deny the applicant a spouse visa on the basis that the applicant’s own evidence, on the occasion of the falsehood, indicated he was not married. The Tribunal was found, both at first instance and on appeal, to have been actually biased, principally because of its refusal to have any regard to a considerable body of evidence indicating that there was a genuine marriage to which both spouses were committed: Asif at [20]-[26] per Drummond, North and Madgwick JJ. Although a case which turned on the issue of actual bias the Full Court of the Federal Court in Asif made a number of pertinent observations concerning the proper approach to determining partner visa cases in the context of reg 1.15A(3) of the Migration Regulations, and in particular that:
(a)reg 1.15A(3) of the Migration Regulations “identifies classes of evidence from sources other than the applicant which are logically relevant to proving” an applicant’s state of mind, and to which the Tribunal must have regard: Asif at [22] per Drummond, North and Madgwick JJ;
(b)“the significance” of a “mass of material” put to the Tribunal, and noted by it, for the purposes of reg 1.15A(3) of the Migration Regulations, was “entirely ignored … as probative of the … commitment to the marriage when he entered into it because the [T]ribunal was not prepared to look beyond the respondent’s [applicant before the Tribunal] own testimony”: Asif at [24] per Drummond, North and Madgwick JJ, and the Tribunal “ignored its probative significance”: Asif at [26] per Drummond, North and Madgwick JJ; and
(c)there was an “unexplained failure to comply with the statutory direction in reg 1.15A(3) to have regard to all the evidence relevant to … [satisfaction of] the primary criterion in para 820.211(2) from sources other than the respondent [applicant before the tribunal] that was put before it”: Asif at [30] per Drummond, North and Madgwick JJ.
In Asif at [20] per Drummond, North and Madgwick JJ the Full Court of the Federal Court also observed that the credibility of a visa applicant was “of very considerable importance”, but that, dependent upon the nature and extent of evidence coming from other sources (for example, children and other relatives) it was possible for a visa applicant to succeed even though the visa applicant lacked credibility.
In 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 a Full Court of the Federal Court observed as follows:
76In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
(i)whether there are children and whether there is any joint responsibility for their care and support;
(ii) what the living arrangements of the persons are; and
(iii)whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
77So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.
78The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.
In Javed v Minister for Immigration & Anor [2019] FCCA 2591 at [64] per Judge Lucev this Court observed that:
64. It follows from He that there is no proper, genuine and realistic consideration or meaningful consideration as required unless there is a finding as to the facts that bear upon the consideration. The Tribunal cannot, by failing to make the requisite findings as to each consideration, discharge the statutory obligation to consider each of them. It must form a view. However, it is a matter within the jurisdiction of the Tribunal to form a view as to those factual matters. It is also for the Tribunal to determine how to bring each consideration to bear in reaching its conclusion as to whether a person is a spouse of another for the purposes of the Migration Act.
Satisfaction of one of the primary criteria will not, of itself, be sufficient to demonstrate that the circumstances “justifying the grant of the visa” arise. Dealing with an application for an orphan relative visa this Court commented in Ibrahim v Minister for Immigration and Border Protection [2017] FCCA 882 at [86] and [98] per Judge Jarret that:
86. But in my view, the applicants’ argument misapprehends the tribunal’s reasons. The tribunal does nothing more than suggest that to secure the grant of the relevant visa in circumstances where PIC 40210(1) has not been met, satisfaction of one of the primary criteria for the grant of the visa will not, of itself, be sufficient to demonstrate the necessary compassionate and compelling circumstances so as to justify the waiver of PIC 4020(1). The tribunal was not in error in suggesting that: “Something more than their being his orphaned relatives is needed in the tribunal’s view, to establish the existence of compassionate or compelling circumstances”.
…
98. As I have set out above, on a proper construction of PIC 4020(4) something more than simply meeting the substantive visa criterion is required to justify the grant of the visa. Otherwise there would be no purpose to be served by either PIC 4020(1) or 4020(4)[.]
Satisfaction of visa criteria cannot however be ignored simply because they are a “hallmark” of a visa if they are relevant to an assessment of waiver under PIC 4020(4) of Sch 4 to the Migration Regulations. Dealing with a Partner Visa in Singh v Minister for Immigration and Border Protection [2017] FCCA 2461; (2017) 325 FLR 275 (“Singh”) at [54] per Judge Manousaridis this Court observed that:
54. The next question is whether the Tribunal misconstrued PIC4020(4)(b). In my opinion it did.
a) First, PIC4020(4)(b) is a condition that is capable of applying to different classes of visa applications. There is nothing in the text of PIC4020(4)(b) that can be taken to exclude from a particular class or particular classes of visas – in this case Partner visas – what would otherwise be compelling or compassionate circumstances because such circumstances may be thought to be the hallmark or usual incidents of the factual premises on which such visas may be granted.
b) Second, there is no reason why the hallmarks or usual incidents of a particular genuine partner relationship could never give rise to compelling or compassionate circumstances. The nature and the extent of the bonds that may exist between partners to a genuine relationship, and the consequences of partners separating, even if only for the time it would take for an applicant to apply offshore for a Partner visa, are likely to differ from one relationship to another. That means that, whether or not the separation can give rise to compassionate or compelling circumstances must be considered having regard to the particular circumstances of the case. There is nothing in PIC4020(4)(b) that could suggest that the decision-maker is to ignore the nature and extent of the bond between particular parties to a particular genuine partner relationship only because it is to be expected that emotional bonds are present in all genuine partner relationships.
c) Third, the Tribunal’s construction would give rise to anomalous results. If correct, it would mean compassionate or compelling circumstances that may arise out of the emotional bonds that are present in a genuine partner relationship may not be taken into account where the class of visa in question is a Partner visa, yet it may be taken into account in other classes of visa.
The primary criteria and PIC 4020 of Sch 4 to the Migration Regulations are distinct, and assessment of waiver under PIC 4020(4) of Sch 4 to the Migration Regulations is a matter of fact for the Tribunal. It is, however, apparent that satisfaction of the visa criteria cannot be ignored if it might be relevant to an assessment under PIC 4020(4) of Sch 4 to the Migration Regulations.
In the Tribunal Decision at CB 957 at [163] the Tribunal found as follows:
163. Considering first the circumstances of the sponsor, Mr Kow, the Tribunal has not assessed in detail the nature of the parties’ relationship for the purpose of satisfying the spousal relationship requirements for the grant of the visa. There is information that has cast doubt on the genuineness of the relationship including matters put to the applicant at the hearings, which are detailed above. These are matters which may impact an assessment of the nature of the parties’ relationship. However, the Tribunal accepts, for the purpose of determining whether there are compassionate or compelling circumstances with respect to Mr Kow that the primary applicant may be in a genuine relationship with the sponsor. Further, the Tribunal acknowledges the length of this relationship and accepts that the parties have been legally married since April 2013.
Having regard to the authorities set out at [26]-[33] above the Tribunal was required to actually consider and weigh the evidence as to each of the factors in reg 1.15A(3) of the Migration Regulations, that is, it was necessary for the Tribunal to make findings which showed that each factor had been considered: He at [76]-[78] per Siopis, Kerr and Rangiah JJ; Asif at [22] per Drummond, North and Madgwick JJ. It was not open on the authorities for the Tribunal to assume the existence of a genuine spousal relationship: the factors under reg 1.15A(3) of the Migration Regulations were required to be “answered, not merely thought about”: He at [76] per Siopis, Kerr and Rangiah JJ, in determining the existence or otherwise of a genuine spousal relationship. To make the assumption, as the Tribunal did in this case, without considering the relevant factors, was to fail to have regard to the “overarching obligation” imposed by reg 1.15A(2) and (3) of the Migration Regulations: Angkawijaya at [52] per Kenny and Griffiths JJ, and to thereby commit jurisdictional error: He at [78] per Siopis, Kerr and Rangiah JJ.
The necessity to properly consider the impact of evidence and findings in relation to the factors under reg 1.15A(3) of the Migration Regulations, rather than making an assumption about the nature of the spousal relationship, is obvious when one considers the possible probative significance of evidence provided by an applicant, and others associated with an applicant: Asif at [24] and [26] per Drummond, North and Madgwick JJ: Singh at [54(a) and (b)] per Judge Manousaridis, in relation to those factors. Bearing in mind that those factors are not an exhaustive list of matters to be considered: Angkawijaya at [50(5)] and [52] per Kenny and Griffiths JJ, they nevertheless are factors which, if fully and properly considered, might expose relevant compassionate or compelling circumstances that the Tribunal ought to consider when having to consider a waiver for the purposes of PIC 4020(4)(b) of Sch 4 to the Migration Regulations. In this case although the Tribunal set out some of the evidence (which in this case was not inconsiderable) relevant to some of the factors under reg 1.15A(3) of the Migration Regulations, there was no active intellectual process directed at a full and proper consideration of those factors: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [45]-[46] per Lindgren, Rares and Foster JJ, and the making of relevant findings in relation thereto: He at [78] per Siopis, Kerr and Rangiah JJ; Javed at [64] per Judge Lucev. Thus, jurisdictional error exists because there has not been a real, but rather a purported, exercise of power by the Tribunal because the Tribunal has not had regard to all of the matters which it had to address: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 595 per Kirby J.
The mere fact that the Franzone Documents were found by the Tribunal to be bogus documents under s 5(1)(b) of the Migration Act: CB 950-951 at [125], and contained information which was false and misleading in a material particular which was relevant to the criteria for the grant of the Partner Visa, and which may influence a decision-maker: CB 952-953 at [139]-[140], and which were given or caused to be given to the Delegate by Ms Wu: CB 954 at [146], did not relieve the Tribunal from the obligation to consider the factors under reg 1.15A(3) of the Migration Regulations, given that full and proper consideration of those factors might expose circumstances which might be compassionate or compelling for the purposes of PIC 4020(4)(b) of Sch 4 to the Migration Regulations, and likewise in relation to the adverse view taken by the Tribunal as to Ms Wu’s credibility: Asif at [20], [24], [26] and [30] per Drummond, North and Madgwick JJ.
For the above reasons ground 3 of the Amended Judicial Review Application is made out and establishes jurisdictional error in the Tribunal Decision.
In relation to the issue of futility which was raised in the course of the hearing in relation to ground 3, the Court is not satisfied that the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations: SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [96] per McKerracher J (“SZOOR”). The occasion for the use of the exercise of the discretion to refuse relief in cases of jurisdictional error is rare: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 at [51]-[53] per Gaudron and Gummow JJ (with whom Gleeson CJ agreed: at [5]). The issue is not whether a re-hearing by the Tribunal might be futile, but whether a Court cannot be certain that it will be futile: Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559 at [53] per Besanko J, that is, to return to SZOOR at [96] per McKerracher J “whether … the grant of relief could not possibly make a difference” to the eventual outcome before the Tribunal. In the absence of consideration of, and findings of fact in relation to, the relevant factors under factors under reg 1.15A(3) of the Migration Regulations, the Court cannot be satisfied that proper evaluation of those factors by the Tribunal would be futile in impacting upon a full and proper consideration of “compassionate or compelling circumstances” for the purposes of PIC4020(4)(b) of Sch 4 to the Migration Regulations. There is no doubt that the evidence thus far considered by the Tribunal has resulted in findings heavily weighted against Ms Wu and Mr Kow, and were the matter to return to the Tribunal the Tribunal’s decision may be the same, but there is also a possibility it may not be. That decision is, however, one for the Tribunal, and not for this Court on judicial review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Angkawijaya at [68] per Kenny and Griffiths JJ. It follows that it would not be futile to remit the matter for a new hearing before the Tribunal.
GROUND 2
Ground 2 of the Amended Judicial Review Application is as follows:
2. In considering whether there were compelling or compassionate circumstances affecting the First Applicant’s husband, Mr Kow, the Tribunal erred in finding at [167] (CB 958) that Mr Kow would experience “more limited” religious freedom and a “more limited” freedom to practise as a Christian where the evidence was that he would face persecution and a loss of freedom.
PARTICULARS
a. Mr Kow claimed in his statutory declaration of 9 April 2019 (CB 388 – 394, at [58]) that practising his religion in China would be a cause of danger to his life; and that in China, people can be persecuted for attending church.
b. This claim was supported by evidence in an article published in The Guardian on 13 January 2019 concerning the intensification of religious persecution by China’s Communist Party (CB 396 – 400).
c. The Tribunal made a jurisdictional error by failing to consider Mr Kow’s claim that he would be at risk of persecution; rather, it only considered whether his religious freedom would be more limited.
Applicants’ Submissions
The applicants’ written submissions essentially repeated the substance of ground 2 and the particulars in the Amended Judicial Review Application.
Minister’s Submissions
The Minister’s submissions were as follows:
(a)the present case is not one in which the Tribunal was required to reach a state of satisfaction about whether the harm claimed by Mr Kow amounted to persecution, but rather involved consideration of whether there were compassionate or compelling circumstances as to why the requirements of PIC 4020 of Sch 4 to the Migration Regulations ought to be waived;
(b)the evidence in The Guardian article does not necessarily found a conclusion that Mr Kow would be persecuted for his religion in China;
(c)country information (which The Guardian article is) is a matter for the Tribunal;
(d)the Tribunal actively and intelligibly engaged with the claims in relation to Mr Kow’s relocation to China and the impact on his ability to practice his religious beliefs and accepted this as weighing in favour of the waiver of the requirements of PIC 4020 of Sch 4 to the Migration Regulations; and
(e)it was a matter for the Tribunal to weigh the relevant circumstances and come to a conclusion as to whether to waive the requirements of PIC 4020(1) of Schedule 4 to the Migration Regulations. The conclusion not to waive the requirements was open to the Tribunal.
Consideration – ground 2
With respect to Mr Kow’s religious freedoms in China the Tribunal Decision found as follows at CB 958 at [167]:
167. He indicated in his statutory declaration that he is a practicing Christian and fears he would not be able to practice his religion freely in China without risk of persecution. The primary applicant’s representative referred the Tribunal to an article on the suppression of religious freedom in China in support of this submission. The Tribunal accepts, for the purposes of this application, that the religious freedom in China is more limited than Australia and that the sponsor’s freedom to practice as a Christian may be more limited there.
It is common ground that Tribunal’s reference to an article concerning “the suppression of religious freedom” was a reference to The Guardian article.
It is plain that the Tribunal recognised:
(a)the claim of possible persecution being made by Mr Kow in the event that he were to return to China; and
(b)that the evidence in support of that claim included The Guardian article.
In the context of the Partner Visa, ground 2 appears, at its widest, to be an assertion that the Tribunal Decision in relation to the issue of religious persecution was illogical, irrational or otherwise unreasonable.
It is not the task of this Court to find the facts, but an examination of content of The Guardian article (as opposed to just the headline) published on 13 January 2019: CB 395-400, demonstrates that there was material within it which justified a finding of limited religious freedom in China for a practising Christian. For example:
(a)the Chinese government’s current drive:
(i)“is aimed not so much at destroying Christianity but bringing it to heel”: CB 397; and
(ii)seeks to “‘sinicise’ Christianity, to turn … [it] into a fully domesticated religion that would do the bidding of the party”: CB 397;
(b)the “goal of the crackdown is not to eradicate religions … [but] to establish a new order on religion, suppressing its blistering development. [The government] aims to regulate the ‘religious market’ as a whole”: CB397;
(c)“Protestantism and Catholicism are two of five faiths sanctioned by the government and religious freedom has been enshrined in the constitution since the 1980s”: CB 397;
(d)“[t]here are at least 60 million Christians in China”: CB 398; and
(e)“[s]everal of China’s most active human rights lawyers are Christians”: CB 398.
The Tribunal relied on the evidence put forward by the applicants during the Tribunal review. The Guardian article is not inconsistent with a finding that Mr Kow’s religious freedom would be more limited in China, and certainly does not dictate that a finding that Mr Kow would be at risk of persecution must be made, in the sense that such a finding was the only one open on the evidence.
The Tribunal was not required to use the language used by the applicants in ground 2. This was not an application for a protection visa where the phrase “at risk of persecution” forms part of the statutory conditions for the grant of the visa. The reliance on The Guardian article as evidence to support a finding that Mr Kow’s freedom to practice Christianity in China would be more limited was appropriate, and use of the language in the Tribunal Decision to express this finding was appropriate to the inquiry.
Given that there was a basis for the finding as to limited religious freedom it cannot be said that that that finding about which Ms Wu now complains was illogical or irrational in the relevant legal sense: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1997) 73 ALJR 746; (1997) 162 ALR 577; (1997) 54 ALD 289 at [138]–[139] per Gummow J; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [38] per Gummow and Hayne JJ; 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 at [135] per Crennan and Bell JJ, and nor was it legally unreasonable: Li; Pandey at [41] per Wigney J.
For the above reasons ground 2 of the Amended Judicial Review Application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)grounds 1 and 2 of the Amended Judicial Review Application have not been made out, and do not establish jurisdictional error in the Tribunal Decision;
(b)ground 3 of the Amended Judicial Review Application has been made out, and establishes jurisdictional error in the Tribunal Decision; and
(c)it would not be futile to remit the matter for a new hearing before the Tribunal.
It follows that writs of:
(a)certiorari will issue quashing the Tribunal Decision; and
(b)mandamus will issue requiring the rehearing of the application for review to the Tribunal according to law.
The Court will hear the parties as to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 20 May 2021
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