Xing v Minister for Immigration

[2018] FCCA 208

FEDERAL CIRCUIT COURT OF AUSTRALIA

XING v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 208

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, s.360(1)

Migration Regulations 1994 (Cth) reg.1.15A

Applicant: CHANGLU XING

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 294 of 2017

Judgment of: Judge Vasta

Hearing date: 17 January 2018

Date of Last Submission: 17 January 2018

Delivered at: Brisbane

Delivered on: 17 January 2018

REPRESENTATION

Solicitors for the Applicant: Essen Lawyers

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 3 April 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 294 of 2017

CHANGLU XING

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 3 April 2017, the Applicant, Changlu Xing, had asked this Court to review a decision of the Administrative Appeals Tribunal (“the AAT”) of 13 March 2017.  That decision itself affirmed a decision by a delegate of the Minister not to grant the Applicant a partner visa. 

2. The facts in this case are these.  The applicant was born in Tianjin, China in 1984.  He came to Australia on 6 January 2010 on a student visa.  He remained in Australia on a succession of student visas, the last one of which was to cease on 20 November 2015.

3. On 21 September 2015, two months before that visa would have ceased, the Applicant applied for a partner visa.  His sponsor was a woman whose name I do not have to reveal and will not. The Applicant claims that he met the sponsor in February 2015 because they were both working as tour guides on the Gold Coast. 

4. He said that they entered into a relationship in April, and that she became pregnant in late May.  He then moved in with her in mid-June into a house that was owned by the sponsor's father.

5. They then married in August 2015 in Australia.  It seems that by September, the marriage was, in effect, over. Notwithstanding this, they travelled to China; firstly, the sponsor in September, and then the Applicant in October, for the purpose of holding wedding receptions in China. 

6. The Applicant returned to Australia to remove his belongings from the sponsor's father's house where he had been living since mid-June.  The sponsor withdrew her sponsorship on 5 January 2016 giving the Department, as a reason for the withdrawal, the fact that she suffered domestic violence committed by the Applicant.

7. She had a copy of a protection order, dated 2 September 2015, which had been granted by the Southport Magistrates Court though I do note that such an order was granted without admissions on the Applicant's behalf. 

8. The Applicant was invited by the Department, on 20 January 2016, to comment on this change of relationship information that had been provided by the sponsor.  On 5 February 2016, a letter was written and delivered to the Department under the hand of the solicitor for the Applicant.

9. It read that:

   “We refer to the above matter, and confirm we act for the applicant, Mr Changlu Xing, in all of his migration matters.  We enclose the following documents for your consideration: 

   A form 956 for the applicant; 

   A form 1410 statutory declaration for family violence claim under the hand of the applicant; 

   A statutory declaration under the hand of the applicant; 

   A form 1410 statutory declaration for family violence claim from a psychologist, Jane McDowall; 

   A statutory declaration of Jane McDowall; 

   A certified copy of the marriage certificate; 

   Commonwealth Bank statement under the joint name; 

   And supporting documents to prove the relationship”

   which was photographic evidence of the relationship asserted by copy of a driver's licence, and a positive spotting of an ultrasound scan from South Coast Radiology.  It said:

   “We will provide the statutory declaration from medical profession in due course.”

   And there appears no other documentation that was then sent.

10. The Administrative Appeals Tribunal were under a mistaken belief that those documents meant that the Applicant had lodged a non-judicially determined claim that he had been the victim of family violence in the form of financial and emotional abuse committed by the sponsor. 

11. In fact, whilst he did lodge such a claim, such a claim must be accompanied by affidavits of two medical professionals that attest to the domestic violence aftermath.  There was only one such document submitted from the psychologist, Jane McDowall.  And so, therefore, there was not a valid non-judicially determined claim that the Applicant had been the victim of family violence before the AAT. 

12. That is significant for this reason. What the AAT had to determine was, firstly, whether the Applicant and the sponsor were in a spousal relationship. Such a spousal relationship is defined by s.5F of the Migration Act 1958 (Cth) (“the Act”), which, for these purposes, reads:

    “(1)   For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the two 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 a married couple 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.”

13. The AAT had to consider whether or not the Applicant and the sponsor were in a married relationship.  It was obvious that they had been married to each other under a marriage that was valid, and there was a certificate to show this.  It was also not contested that the relationship between them was not continuing, and that they did live separately and apart on a permanent basis. 

14. The question that the AAT then had to determine was this; whether this was a genuine relationship that ended because the Applicant had been the subject of domestic violence.  If that question is answered in the affirmative, then the AAT could still consider this aspect.

15. The AAT then decided to look at whether this was a genuine married relationship to see whether that threshold question could be answered before they could then consider the claim for a non-judicially determined claim of family violence.  Unbeknownst to the Tribunal, they could never have considered that claim because the claim before them was not valid because, as I say, there were not the two affidavits from independent medical specialists. 

16. Given that the facts were that the relationship was not continuing, and that the sponsor and Applicant lived separately and apart on a permanent basis, there was actually nothing for the Tribunal to consider. 

17. But, mistakenly, the Tribunal did think that there was something for them to consider, and that was, to start with, whether the threshold question of the determination of this being a genuine spousal relationship was something that, in fact, existed.  The AAT then went through the criteria that they look at, asking whether the parties were validly married.

18. They looked at the financial aspects of the relationship.  There was, actually, a paucity of evidence with regard to that.  The bank statement that was given was a two-page statement that covered nine months.  It seems it covered the four months before the couple entered into whatever one calls “their relationship” and the statements ends at the time just before the sponsor went to China.  This joint bank account had very little information, and the transactions were very sparse and quite meagre.

19. The AAT gives an example that there was $12.50 taken out for a meal.  This, as the Tribunal quite rightly commented, did not show that there was a pooling or sharing of finances commensurate with a spousal relationship.  There was no evidence that bills such as electricity or gas or internet, or any of those sorts of bills were paid from such an account. 

20. The Applicant said that he was paid cash for a lot of his work, and so gave money in cash, though he did acknowledge that he did not pay rent because this house that they were living in was the house of the father of the sponsor, and there was no requirement to pay rent.

21. The Applicant claimed that he did most of the housework, and that the sponsor offered to help out when she was a little bit better after her first dose of some form of morning sickness.  However, one can see that the time that they were actually living together was very short, it would seem about three months. 

22. The Tribunal looked at the social aspects of the relationship, whether the parties represented themselves as being married, and the Tribunal looked at a number of photos and so on that the Applicant gave to them to show pictures of them together, and pictures of them getting married in a small civil ceremony.

23. And then, quite pertinently, the Tribunal looked at the nature of the couple's commitment to each other, including the duration of the relationship, the length of time they lived together, the degree of companionship and emotional support they drew from each other, and whether they saw their relationship as long-term. 

24. It was quite instructive that when the tribunal asked the Applicant how the sponsor had come to Australia, he said that he had never asked her.  The Tribunal asked why and how their relationship had progressed so quickly to marriage, and what influence the prospect that permanent residency had on their decision to marry, to which the Applicant said that he did have choices at the time regarding staying in Australia.

25. He said that he could have enrolled in further studies or sought a work sponsorship, but it was the sponsor's idea to get married, and he simply agreed to it.  He did claim to the Tribunal that the sponsor's pregnancy was proof that he and the sponsor were in a relationship. 

26. There is no doubt that they were in a relationship.  Whether it was a genuine spousal relationship is really the point. 

27. The Tribunal was not persuaded that the parties were in a genuine spousal relationship.  There was no persuasive evidence that the parties pooled their finances commensurate with being in that relationship.

28. There is no evidence of a jointly funded household. There is no evidence of any form of desire or plan for the two of them to live their lives together.  Having come to the fact that the relationship ended very quickly, about a month after marriage, was also something that the tribunal took into account. 

29. And whilst they accepted that the sponsor was pregnant at the time of the application, and that she either miscarried or, as the Applicant seems to believe, had an abortion in China in October 2015, the Tribunal did not accept that this constituted evidence of an ongoing, exclusive, mutually committed spousal relationship. 

30. Given those factual conclusions that the Tribunal made, it is of little surprise that the Tribunal affirmed the decision not to grant the partner visa. 

31. The Applicant came to this Court, and gave three grounds upon which he argued that the court ought to quash the decision and send the matter back to the AAT. 

32. The first ground was that the Tribunal committed an error of law by failing to take into account the relevant considerations.  It became quite obvious, when one reads the decision, that the Tribunal did put aside the question of family violence because the issue of family violence would only become relevant if the tribunal had decided that there was a genuine relationship that had existed and then had ended because of the family violence.

33. If there was no genuine relationship, then it did not matter whether the family violence occurred or not for these purposes.  The argument from the Applicant is that the evidence regarding the family violence did need to be taken into account when looking at whether there was a genuine spousal relationship.  That is because one cannot, as it were, silo the evidence into different areas and not look at some parts of the evidence.  However, the evidence of domestic violence was well and truly contained in the statement of the Applicant.

34. The only other evidence relating to domestic violence came from the psychologist.  The psychologist was only repeating exactly what the Applicant had said, and then giving her opinion as to what effect such behaviour has had on the Applicant if the acts complained of did actually occur. 

35. Therefore, the matters which constituted, or allegedly constituted, domestic or family violence were taken into consideration by the Tribunal because it took into account what the Applicant said about the relationship holus bolus.

36. In doing that, it has taken into account all relevant material. It does not seem to me that the Tribunal has done anything other than look at the reg.1.15A, and the definition in section 5F of the Act, and looked at anything and all matters that were relevant to determining those matters. So there does not seem to be anything in that particular ground.

37. The second ground is that the Tribunal failed its obligation under s.360(1) of the Act by failing to give an opportunity to the Applicant to give evidence and present arguments in relation to the issue of the genuineness of the photographic evidence supplied to the Tribunal.

38. The photographic evidence, as I have already spoken about, was given to the Tribunal by the Applicant.  That photographic material was considered by the Tribunal.  The Tribunal, though, came to a conclusion as to what is depicted in those photographs and videos.  The Tribunal said this at paragraph 23:

    “23. These photos and videos were taken on one or two days in each of the months of May, July, August and October 2015.  Not all of the photographs show the sponsor.  They all have the appearance of being taken or organised by the applicant.

    24. The photos taken in October 2015 show the sponsor and applicant together with the applicant's parents in China eating a meal and as a couple, and with relatives on several outings.  A large number of photos taken on several days in July and August 2015 show the parties together with members of their local congregation of the Mormon Church including on a park visit arranged by the applicant.  A large number of photos taken on 24 August 2015 show the parties getting married in a small civil ceremony

    25. The applicant appears to be positive, energised and happy in the photos.  In most of the photos in which she appears, the sponsor does not look positive, energised or happy.  She looks reserved and reluctant.”

39. The Applicant contends those conclusions or observations ought to have been put to the Applicant to allow him to somehow respond.  The Tribunal does not need to go through and tell the Applicant what their thought processes were, what their determinations are or what their subjective appraisals are, for this reason.  That is a matter of evidence to be put to the Tribunal, and the Tribunal must determine what the facts are.  The photographs are evidence in and of themselves.  What the Tribunal does or how the Tribunal views those photographs is a matter for the Tribunal.

40. It is a matter that is within the purview of the Tribunal, and is not a matter that the Tribunal needs to be informing the Applicant of.  It is not in that category of material.  I do not find that there is anything in that particular ground. 

41. In ground three the Applicant says that the Tribunal has committed an error of law by concluding that the pregnancy of the sponsor at the time of the application does not constitute evidence of the existence of a genuine relationship.  This ground is not truly a ground of jurisdictional error.  It is objection to the conclusion that was made by the Tribunal.

42. The Tribunal has not looked at the matter generally and said that a pregnancy does not show the existence of a relationship. The Tribunal has, instead, look at all the circumstances, and in these circumstances was not satisfied that the fact that the sponsor fell pregnant showed that there was a genuine spousal relationship as defined by s.5F of the Act.

43. This was a matter within the purview of the Tribunal, and any attempt to look at this aspect would amount to an impermissible merits review.

44. I have gone through these grounds for the reason I am about to state, but I am of the view that the error that the Tribunal made was actually embarking upon a review of whether there was a genuine relationship. 

45. The Tribunal had no need to do that because there was no valid application for a non‑judicially determined family violence claim before it. 

46. Therefore, if the relationship was not ongoing, that was the end of the matter.  But even if I were incorrect about that assessment, the grounds upon which the Applicant says that the Tribunal has committed a jurisdictional error are, for the reasons I have given, without merit. 

47. Therefore, I dismiss the application.

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

Date:  29 March 2018