Xu v Minister for Immigration

Case •

[2008] FMCA 526

•

1 May 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 526
MIGRATION – Application for partner visa – whether applicant and sponsor had a genuine commitment to a shared life as husband and wife to the exclusion of all others – whether issue of fidelity considered.
Migration Act 1958 (Cth), s.474
Migration Regulations, regs.1.15A, cl.100
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Attorney General for the State of NSW v Quin (1990) 170 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Fang Wang v MIMIA [2003] FCA 1044
Applicant: SHAO RONG XU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File number: MLG 1112 of 2007
Judgment of: Turner FM
Hearing date: 13 March 2008
Date of last submission: 13 March 2008
Delivered at: Melbourne
Delivered on: 1 May 2008

REPRESENTATION

Counsel for the Applicant: Mr. Krohn
Solicitors for the Applicant: Chua Tan & Associates
Counsel for the Respondents: Ms. Laif
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application and the amended application are dismissed.

  2. The applicant pay the first respondent’s costs fixed in the sum of $5,000.00 within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1112 of 2007

SHAU RONG XU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 30 May 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Partner (Migration) (Class BC) visa.

Background

  1. On 18 December 2001 the applicant applied to the Department of Immigration and Multicultural Affairs for a Partner (Migrant) (Class BC) visa. The delegate refused to grant the applicant her visa as she did not satisfy the visa requirements of a subclass 100 visa (being cl.100.221 of Schedule 2 to the Migration Regulations 1994) (CB 190).

  2. The applicant applied to the Tribunal on 6 January 2006 for a review of the decision of the delegate of the first respondent (CB 200). 


    The decision of the delegate was affirmed by the decision of the Tribunal signed on 30 May 2007 (CB 292).

  3. The matter is before this Court pursuant to an application for judicial review filed on 13 August 2007, and an amended application filed on 21 December 2007.

Issues for determination

  1. The issues before the Court are as follows:

    ·Did the applicant and her sponsor have a genuine commitment to a shared life as husband and wife to the exclusion of all others?

    ·Did the Tribunal give insufficient weight to material before it?

    ·Did the Tribunal fail to consider issues raised before it?

The application

  1. The application contains 2 grounds as follows:

    “1.The Tribunal has made a  jurisdictional error.

    2.The Tribunal has disregarded relevant material to taking (sic: and taken) irrelevant material into account.”

  2. The amended application contains expanded grounds and particulars:  at the hearing the applicant was granted leave to amend the amended application by denoting the existing Particular “(a)”, and by adding a new particular “(b)” in each ground as shown below.

    “1.  The Tribunal has made a jurisdiction al (sic) error in interpreting or applying the relevant law.

    Particulars

    (a) The Tribunal in determining whether the applicant and her husband were spouses within the meaning of Regulation 1.15A of the Migration Regulations 1994 failed to advert to or consider and to determine the question of their fidelity.

    (b)   The Tribunal failed to take into account material relevant to the commitment of the applicant and her husband to a shared life as husband and wife.

    2.The Tribunal fell into jurisdictional error or acted without jurisdiction in failing to consider relevant material or questions. (The first particular was denoted (a) with a new (b) added as shown below)

    Particulars

    (a)   The Tribunal in determining whether the applicant and her husband were spouses within the meaning of Regulation 1.15A of the Migration 1994 failed to advert to or consider and to determine the question of their fidelity”

    (b) The Tribunal failed to take into account material relevant to the commitment of the applicant and her husband to a shared life as husband and wife.”

Findings of the Court in relation to the grounds in the application

  1. The findings of the Court in relation to the amended application, encompass the grounds in the application.

Findings of the Court in relation to the grounds in the amended application

  1. Ground 1(a). This alleges that the Tribunal failed to “advert to or consider and to determine the question of their fidelity” in determining whether the applicant and her husband were spouses as defined in reg.1.15A of the Migration Regulations 1994 (“the Regulations”).

Regulation 1.15A provides relevantly:

“(1) For the purposes of these Regulations, a person is the         spouse of another person if the 2 persons are:

(a)in a married relationship, as described in subregulation (1A); or

(b)in a de facto relationship, as described in subregulation (2).

(1A)    Persons are in a married relationship if:

(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(b)the Minister is satisfied that:

(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)the relationship between them is genuine and continuing; and

(iii)they:

(A)    live together; or

(B)    do not live separately and apart on a permanent basis.

…

(3)   In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

…

(ad)a Partner (Migrant) (Class BC) visa; or

(ae)a Partner (Provisional) (Class UF) visa; or

(af)a Partner (Residence) (Class BS) visa; or

(ag)a Partner (Temporary) (Class UK) visa;

the Minister must have regard to all of the circumstances of the relationship, including, in particular:

(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 party to the relationship owes any legal obligation in respect of the other; and

(v)the basis of any sharing of day‑to‑day household expenses;

(b)the nature of the household, including:

(i)any joint responsibility for care and support of children, if any; and

(ii)the parties' living arrangements; and

(iii)any sharing of responsibility for housework;

(c) the social aspects of the relationship, including:

(i)whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

(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;

(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.”

  1. One of the matters an applicant must satisfy the Minister of is that the couple “have a mutual commitment to a shared life as husband and wife to the exclusion of all others”. The applicant alleges in Ground 1(a) that the Tribunal “failed to advert to or consider and to determine the question of their fidelity”.

  2. The principal issue in the case before the Tribunal was “whether the applicant is the spouse of the sponsoring spouse at the time of the decision” by the delegate (CB 330.4). The applicant stated that she was married in China on 16 November 2001 (CB 331.5). The Tribunal accepted that claim.

  3. The Tribunal then accepted that it is possible for a couple to “have a genuine shared life as husband and wife in spite of living apart for a period” (CB 355.6).

  4. However having considered all the circumstances the Tribunal was not satisfied that at the time of the decision the applicant and her sponsor “have such a commitment” (CB 355.6). The circumstances referred to by the Tribunal include the sponsor’s absence from Australia on the applicant’s arrival; the short period of time he spent in Australia after his arrival; the limited time the parties have spent together overall and the sponsor’s ongoing absence from Australia (CB 355.7).


    The Tribunal found these circumstances to be inconsistent with the parties claimed commitment to each other (CB 355.7).

  5. The material before the Tribunal made no direct reference to the “fidelity” of the sponsor and applicant, and therefore that issue was not referred to by the Tribunal by that name in its decision.

  6. The material considered by the Tribunal in reaching that conclusion is referred to below. The finding that the Tribunal was “not satisfied that the applicant and her sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others” (CB 355.8) is a finding of fact that was properly open to the Tribunal on the material before it, and is not open to review.

  7. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”

  8. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

  9. The Court refers to the following passage in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:

    “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

    There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

  10. A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].

  11. As stated by Collier J in SZINP v Minister for Immigration and Citizenship (ante):

    “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510.”

  12. Here there was no evidence of fidelity that was ignored or given little weight.

  13. In any event, weight is a matter for the Tribunal.  As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).” 

    The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

  14. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:

    “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

  15. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

  16. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship (ante) as follows:

    “the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.”

  17. The Court does not find the decision of the Tribunal to be unreasonable.

    “Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.”

  18. An error in interpreting and applying the law has not been established.  The Tribunal considered the question of the parties commitment to each other to the exclusion of all others.

  19. Ground 1(a) is rejected.

  20. Ground 1(b).  It has not been shown that the Tribunal ignored material “relevant to the commitment of the applicant and her husband to a shared life as husband and wife”, or gave it little weight.  Weight is a matter for the Tribunal (ante).

  21. The Tribunal considered the relevant factors from (CB 351.7–355.8), but was not convinced by the material and “was not satisfied that the applicant satisfies the spousal requirement contained in both cl.100.221(2)(b) and 100.221(2A)(b) for the grant of a subclass 100 visa” (CB 355.9).

  22. Findings of fact are a matter for the Tribunal (ante).

  23. As to the “financial aspects of the relationship”, the Tribunal accepted that the parties have a joint bank account. The Tribunal accepted that the sponsor may give the applicant some financial assistance when he is in Australia, but did not accept that “the applicant and sponsor ever had the opportuntiy to establish a joint household over a sustained period” (CB 352.3). The Tribunal accepted that the parties have taken out a mortgage over a jointly owned property.

  24. As to the “nature of the household” the Tribunal referred to the “statements from a number of people attesting to the genuiness of the relationship” (CB 352.9). Those statements were referred to by the Tribunal and analysed at (CB 336.2–339.4), and at (CB 352.9–353.2 and CB 353.10). The Tribunal did not fail to take account of those statements. It accepted that there was “evidence of some, but limited social activities together during the periods when the sponsor has returned to Australia” (CB 353.2–354).

  25. As to the “nature of the persons” commitment to each other, the Tribunal considered that issue at (CB 353.3–354).

  26. The “social aspects of the relationship” were addressed at (CB 352.8) where the various witness statements were referred to. At (CB 355.3) the Tribunal stated that it “has given weight to the evidence with regard to the financial and social aspects of the relationship”. This alone distinguishes the matter from Fang Wang (post). The question of what weight the Tribunal gave is a matter for it (ante).

  27. The Tribunal had regard to the fact that in China it is culturally acceptable for married parties to reside away from each other (CB 355.5), and accepted that it is possible for a couple to have a genuine commitment to a shared life as husband and wife in spite of living apart for a period (CB 355.6).

  28. However “having considered all the circumstances” the Tribunal did “not accept that the applicant and sponsor have such a commitment” (CB 355.7). That finding of fact was properly open to the Tribunal on the material before it, and is not open to review. The Tribunal then listed the factors that led it to conclude that it “is not satisifed that at the time of decision the applicant and her sponsor have mutual a commitment to a share life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing” (CB 355.8).

  29. That finding of fact was properly open to the Tribunal on the material before it. It is not a finding “that no reasonable body could have come to”. The finding is not open to review. The Tribunal then found that the parties “did not satisfy the requirements of regs.1.15A(1A)(b)(i) and 1.15A(1A)(b)(iii)” (CB 355.8). The Tribunal was “not satisfied that the applicant satisfies the spousal requirement contained in both cl.100.221(2)(b) and 100.221(2A)(b) for the grant of a subclass 100 visa…(CB 353.8) Therefore the applicant does not meet the spousal criteria in cl.100.221(1) and cannot be granted a subclass 100 visa”. (CB 355.10).

  1. No error of law has been established.

  2. The Court accepts the submission for the first respondent that to come within Fang Wang v MIMIA [2003] FCA 1044 the Tribunal must have either excluded information because it has not appreciated that it was “going to a circumstance of the relationship (Fang Wang at paras 19 and 55) or the parties put a matter in issue and the Tribunal failed to deal with it. Neither happened in this case.”

  3. In Fang Wang, material going to fidelity was put before the Tribunal: it was not taken into account (Fang Wang at para 13, 17, 19, 20 and 21). Material as to commitment was put to the Tribunal in this case and was taken into account. There can be no complaint that relevant material as to fidelity or commitment was not taken into account.

  4. The next question is “whether the Tribunal in the present case excluded, or gave no weight to, information because it did not appreciate that it was going to a circumstance of the relationship?”

  5. In the present matter the Tribunal did not exclude or give little weight to the various statements and statutory declarations put before it and the statements therein about “circumstances of the relationship”.

  6. The decision in Fang Wang is therefore distinguishable, and is not binding on the Court in the present matter.

  7. Ground 2 alleges that the Tribunal erred because it failed to consider relevant material or questions.  Particular 2(a) alleges that the Tribunal failed to advert to or consider or determine the question of their fidelity. This issue was raised by the Tribunal in its invitation to comment sent ot the applicant on 16 April 2007 (CB 348) by referring to “life as husband and wife to the exclusion of all others” (CB 350.6).

  8. The Tribunal considered a number of statements provided to it (CB 352.9). The statement by the applicant did not raise the issue of fidelity (CB 229). The statement by her husband did not raise the issue of fidelity (CB 231). The applicant’s daughter did not raise the issue of fidelity (CB 233). The statement by the applicants’ parents says that their daughter and her husband “have a good relationship as a couple and they support for and love each other” (CB 235). The statement by the applicant’s sister did not raise the issue of fidelity (CB 237).
    The statement by the applicant’s brother did not raise the issue of fidelity (CB 239). The statement by the applicant’s friend, Lin Hai Ting did not raise the issue of fidelity (CB 242). The statement by Sharon Chou says that “I believe that their relationship is true” (CB 245).

  9. The Tribunal refers to Ms Liu stating that “she had no doubt that the relationship was genuine” (CB 333.4) and to Sharon Chou stating that “she believed that the relationship to be geninue” (CB 339.4).

  10. The Tribunal summarised the submissions put by the applicant to it at the hearing (CB 304–308). She made no submissions about fidelity (CB 304–308).

  11. The sponsor’s evidence is summarised also at (CB 308.10): he stated that he had “a commitment to the applicant” (CB 310.4) and a “genuine commitment to the relationship” (CB 331.6). No reference was made to “fidelity”.

  12. The Tribunal recorded that the applicant stated that the marriage was “true and geninue” (CB 348.6).

  13. The Tribunal took into accout “the couples claim to be in a geninue spousal relationship (CB 355.2), but concluded that it “is not satisfied that at the time of the decision the applicant and her sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others” (CB 355.8).

  14. The Tribunal therefore considered the material which raised the issue of commitment or fidelity and made a finding of fact that the couple did not have a commitment to a shared life as husband and wife to the exclusion of all others.  That finding was properly open to the Tribunal on the material before it and cannot be challenged.

  15. Particular 2(a) is rejected.

  16. Particulars 1(a) and 2(a) are rejected, as are Particulars 1(b) and 2(b).

Conclusion

  1. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

  2. Accordingly, the application and amended applications are dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: 

Date:  1 May 2008

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