Xue v Minister for Immigration

[2018] FCCA 2005

FEDERAL CIRCUIT COURT OF AUSTRALIA

XUE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2005

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a partner visa – application to Court for review of decision of Administrative Appeals Tribunal affirming decision of delegate not to grant a partner visa because of cessation of spousal relationship between applicant and sponsoring partner – sponsor informs Administrative Appeals Tribunal that she withdraws sponsorship – applicant not entitled to foreclose Administrative Appeals Tribunal from making enquiry of sponsor as to the state of any de facto relationship with the applicant – Administrative Appeals Tribunal decision not affected by alleged actual bias or by any apprehension of bias - no jurisdictional error affecting the decision of the Tribunal established by applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 359, 359A
Migration Regulations 1994 (Cth)

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v SZKTI (2009) 238 CLR 489

Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

First Applicant: XIAOHUA XUE

Second Applicant: PAUL XUE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1158 of 2017

Judgment of: Judge Dowdy

Hearing date: 8 September 2017

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

The Applicant appeared

in person.

Counsel for the First Respondent: Mr L. Leerdam

Solicitors for the First Respondent: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 18 April 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1158 of 2017

XIAOHUA XUE

First Applicant

PAUL XUE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant in this proceeding is a male citizen of China aged 28 years, having been born on 23 September 1988.

2. The Second Applicant in this proceeding is a male citizen of China aged 7 years, having been born on 9 November 2010, and is the son and dependant of the First Applicant. The First Applicant had married the mother of the Second Applicant, Ms Tingting He, on 11 June 2010. However, that marriage had broken down and the First Applicant and Ms He had separated.  

3. By Application filed in this Court on 18 April 2017 the First and Second Applicants seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 24 March 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 August 2014 refusing to grant to them Partner (Temporary) (Class UK) (Subclass 820) visas (Partner visa(s)).

Background

1. The First Applicant arrived in Australia on 20 August 2006 on a Student (Class TU) (Subclass 571) visa (Student visa) which ceased on 4 June 2007, and was granted a further Student visa which ceased on 15 September 2009.

2. The First Applicant lodged his application for a Partner visa on 7 May 2013 based on his having been in a de facto relationship since 30 April 2011 with his sponsor, Ms Zhenmei He (sponsor), who was an Australian permanent resident. The Second Applicant was included as a secondary applicant in his father’s Partner visa application and merely had to satisfy the secondary criteria, which included that the First Applicant, having satisfied the primary criteria, was granted a Partner visa.

Decision of Delegate

1. By Decision Record of 13 August 2014 the Delegate refused to grant a Partner visa to the First Applicant because, as a person who did not hold a substantive visa at time of application, he could not satisfy criterion 3001 in Sch.3 to the Migration Regulations 1994 (Cth) (Regulations) as required by cl.820.211(2)(d)(ii).

2. Further, the Delegate found that there were no compelling reasons for not applying criterion 3001, which had relevantly required that the Partner visa application be made by the First Applicant within 28 days after his last substantive visa had ceased on 15 September 2009. As a result of the refusal of a Partner visa to the First Applicant, the application for a Partner visa by the Second Applicant also necessarily failed.

First Decision of Tribunal – Set Aside

1. On 20 August 2014 the First and Second Applicants, through their solicitor and registered migration agent (Ms Sylvia Li), lodged applications for review of the decision of the Delegate with the Tribunal (then the Migration Review Tribunal).

2. By letter dated 12 August 2015 the Tribunal invited the First and Second Applicants to appear at a hearing on 14 October 2015 to give evidence and present arguments. On 12 August 2015 Ms Sylvia Li returned a Response to Hearing Invitation to the Tribunal indicating that the sponsor would be attending the hearing before the Tribunal on 14 October 2015.

3. On 22 September 2015 the Tribunal received a letter dated 14 September 2015 by which the sponsor advised her withdrawal of sponsorship. In this letter the sponsor relevantly stated:

   I ZHENMEI HE hereby withdraw my previous sponsorship of the applicant XIAOHUA XUE.

   The letter concluded by advising the separate addresses of each of the First Applicant and the sponsor and their respective mobile telephone numbers.

4. On 14 October 2015 the First Applicant, accompanied by the Second Applicant and Ms Sylvia Li, appeared before the Tribunal to give evidence and present arguments, together with the assistance of an interpreter in the English and Mandarin languages. The sponsor did not appear at the hearing. The First Applicant stated to the Tribunal that the reason for the sponsor’s failure to attend the hearing was that she “was in a bad mood and he did not want her to attend the hearing. The sponsor was very emotional about the visa issue and [he] did not want to stress her”.

5. I note that at [4] of the Decision Record of the Tribunal the hearing is said to have taken place on 14 September 2015, but other evidence in the Court Book indicates that in truth the hearing took place on 14 October 2015.

6. By letter dated 18 November 2015 (s.359A letter) the Tribunal invited the First and Second Applicants to comment on and respond to certain information which the Tribunal would consider, subject to the First Applicant’s comment or response, to be the reason, or part of the reason, for affirming the decision of the Delegate under review, namely:

   On 22 September 2015, the Department of Immigration received a letter from your sponsor, Zhenmei He, informing the Department that she was withdrawing her sponsorship of you.

   This s.359A letter went on to advise the First and Second Applicants that this information might mean that the Tribunal might find that the First Applicant did not meet the definition of de facto partner, as set out in s.5CB of the Act and that the First Applicant did not therefore meet cl.820.211(2) of Sch.2 to the Regulations, which required that he be the de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

7. Be email dated 30 November 2015 Ms Sylvia Li forwarded to the Tribunal the First Applicant’s response dated 27 November 2015 to the Tribunal’s s.359A letter, in which the First Applicant stated as follows:

   Dear Respected Member

   I am writing in regards to your letter of 18 November 2015, asking me to comment on my partner Zhenmei He contacting the Department of Immigration on 22 September 2015 to withdraw my sponsorship.

   I did not know about this until Respected Member brought this up at my hearing on 14 October 2015. When I went home, Zhenmei and I had a talk about this. She told me that after we had an argument, she contacted the Department out of anger acting on impulse.

   Zhenmei has been under a lot of pressure and stress. We fight the same as all couples in a long term relationship but we are still in a relationship.

   Thank you for your time and consideration of my matter.

   Please let me know if there is anything further I can provide to you.

   Xiaohua Xue

   27 November 2015

8. In the result, by its Decision Record of 19 January 2016 the Tribunal affirmed the decision of the Delegate not to grant Partner visas to the First and Second Applicants. However, following an application for judicial review to this Court the decision of the Tribunal was set aside and their applications for Partner visas were remitted, by orders of 31 March 2016, to the Tribunal to reconsider and determine according to law.

Present Decision of Tribunal

1. Following the remittal, the First Applicant appeared before the Tribunal to give evidence and present arguments on 27 October 2016 and then on 10 January 2017. Ms Sylvia Li also appeared at each of these hearings. Ms Sylvia Li had indicated in a Response to Hearing Invitation dated 6 September 2016 that the sponsor would appear at the hearing on 27 October 2016 and had indicated in a Response to Hearing Invitation dated 10 November 2016 that the sponsor would appear at the hearing on 10 January 2017, but at neither hearing did the sponsor appear.

2. At the hearing before the Tribunal on 27 October 2016 the First Applicant told the Tribunal that he “did not want to answer why the sponsor was not present” and requested an adjournment, which was granted.

3. At the second hearing on 10 January 2017 the First Applicant advised the Tribunal that he had not asked the sponsor to attend because he “saw the sponsor’s mood was not OK… so he did not tell her”.

4. On 20 February 2017 a case officer of the Tribunal contacted the sponsor on the mobile number which the sponsor had earlier provided and asked her if she had withdrawn her sponsorship of her partner application with the First Applicant. The case officer recorded in a note dated 20 February 2017 as follows:

   The sponsor confirmed that she had sent the letter withdrawing her sponsorship to DIBP in September 2015, and that the withdrawal remains unchanged. She said that they had separated before that date, that they are not in a relationship and that they did not reconcile at any time after her sponsorship withdrawal.

5. By a further s.359A letter dated 2 March 2017 the Tribunal invited the First and Second Applicants to comment or respond to the withdrawal of sponsorship letter of 22 September 2015 and the confirmation of withdrawal of sponsorship by the sponsor to a case officer of 20 February 2017. The First Applicant responded by a letter dated 10 March 2017 in which he relied on his earlier written explanation dated 27 November 2015 (see [14] above) and in connection with his current relationship with the sponsor stated as follows:

   Currently, my relationship with my partner and visa sponsor Zhenmei He is not stable. In recent times, we would argue and she would often become upset and leave our home. Each time this happens, she is in a volatile mood and I do not stop her from leaving.

   The reason why we have quarrelled so much over the last year is that after my visa application was refused by the Department of Immigration, her mood swings became worse and unpredictable. I have to comfort her all the time and over time, I decided it would be better for her state if mind if I did not tell her too many things ad details about by appeal process at the Tribunal in case it put her in a volatile mood and she could not handle the pressure.

   It never occurred to me that she would view my actions as deceitful and a betrayal in her eyes. I was merely trying to protect her. In the long term though, I believe that our relationship will not be affected and we will get back on track. I believe her actions and words right now are motivated by her unstable mood.

   I will trust her and support her as always no matter what she has said or done. I will give her time to calm down instead of putting any pressure on her. I believe that you too would not wish to see a happy family torn apart like this.

   I said at my hearing that I did not want her to know too much about my current visa situation and I did not want her to be agitated or anxious because of it. I did not think that the Tribunal would call her and involve her and I believe this has caused unfairness to me.

6. In the result, the Tribunal in its Decision Record of 24 March 2017 affirmed the decision of the Delegate not to grant Partner visas to the First and Second Applicants.

7. At [13] of its Decision Record the Tribunal stated the issue in the case as being whether the sponsor had withdrawn her sponsorship. This was correct because at time of decision, pursuant to cl.820.221(2)(a), the First Applicant had to continue to meet the requirement in cl.820.211(2)(c) of being sponsored by his de facto partner.

8. At [14] – [19] of its Decision Record the Tribunal recorded and evaluated the relevant evidence concerning the asserted de facto relationship and sponsorship, and then concluded at [20] that the sponsor’s evidence as provided to the Tribunal was “convincing and compelling” and expressed a preference for the sponsor’s evidence of the cessation of the de facto relationship and her sponsorship, rather than the evidence given by the First Applicant.

9. At [21] the Tribunal recorded its finding that the sponsorship of the First Applicant had been withdrawn by the sponsor and at [22] found that the sponsor did not have a mutual commitment to a shared life with the Applicant to the exclusion of all others as required by s.5CB(2) of the Act for the purposes of evaluating whether a person is the de facto partner of another person.

10. The failure of the First Applicant to meet the criteria for and obtain the grant of a Partner visa necessarily meant that the Second Applicant could not meet the secondary criteria for the grant of a Partner visa.

Grounds of Attack on Tribunal Decision in This Court

1. The Application filed in this Court on 18 April 2017 relied on the following Grounds:

   1.Natural justice was denied by the Administrative Appeals Tribunal.

   2.Procedural unfairness was denied by the Administrative Appeals Tribunal.

Consideration

1. Neither of the Grounds identify in any meaningful way the breaches of the rules of natural justice or the procedural unfairness of which it is asserted the Tribunal is guilty. Further, at the hearing the First Applicant was unfortunately unable to make any meaningful submissions going to jurisdictional error.

2. Nevertheless, at the hearing the First Applicant read without objection his affidavit affirmed on 18 April 2017, which I take as particularising his Grounds.

3. In paragraph 6 of his affidavit he claimed that at some unspecified time the sponsor had been diagnosed with chronic and serious long-term depression and severe anxiety and that hence a decision was made between her and the First Applicant for her not to attend the Tribunal hearings. However, there is no probative expert medical evidence before me as to the sponsor’s medical condition or as to how or why by reason of such a condition she was unable to attend the Tribunal hearings and meaningfully participate and give evidence at them. Further, there was no medical evidence as to why any asserted medical condition of the sponsor had a tendency to negate her seemingly unequivocal withdrawal of sponsorship or her denial of the continuance of any relationship between the First Applicant and herself.

4. In paragraph 7 of his affidavit the First Applicant claimed that he had asked the Tribunal member not to contact the sponsor, but that the Tribunal ignored this request and contacted the sponsor “after the hearing against my request and without my permission”.

5. It necessarily follows that the hearing that the First Applicant must mean to refer to is the second Tribunal hearing on 10 January 2017. However, there is no evidence before the Court of any such request. The Decision Record of the Tribunal does not mention any such request and there is no evidence led from Ms Sylvia Li, who was present at the Tribunal hearing on 10 January 2017, of any such request having been made. Further, at the directions hearing on 26 May 2017 when the First Applicant was present in person he consented to orders which listed the final hearing for 8 September 2017 and provided that any transcript of a Tribunal hearing was to be presented by him. On that occasion I further proceeded to point out to the First Applicant that because of the nature of his Grounds it might well be that he needed to tender a copy of the hearing records of the Tribunal, and that the consent orders to which he had agreed put the responsibility and onus of obtaining a transcript of the Tribunal hearings upon him. However, no transcripts of the Tribunal hearings have been tendered by the First Applicant in this proceeding.

6. Accordingly, I am not persuaded that the First Applicant made any request of the Tribunal member at the hearing on 10 January 2017 not to contact the sponsor. However, even if such a request had been made, the Tribunal was not bound to comply with it. Section 359(1) of the Act conferred on the Tribunal a “general power” to “get any information that it considers relevant”: see Minister for Immigration v SZKTI (2009) 238 CLR 489 (SZKTI) at 501 – 502 [37] per French CJ, Heydon, Crennan, Kiefel and Bell JJ.

7. The Tribunal’s general fact-finding power to get any information cannot be foreclosed or restricted at the request of an applicant. The Tribunal is entitled to test the claims of an applicant. In the circumstances of this case, the Tribunal’s seeking of confirmation from the sponsor of her withdrawal of the sponsorship by the case officer on 20 February 2017 was an obvious enquiry for the Tribunal to make and did not occasion any practical injustice to the First Applicant or constitute jurisdictional error. The Tribunal was permitted to get information under s.359(1) of the Act by telephone: see SZKTI at 504 [47]. The Tribunal’s request for confirmation from the sponsor of her withdrawal of sponsorship was not unfair to the First Applicant.

8. In paragraph 9 of his affidavit the First Applicant alleges that the Tribunal member “had already made up his mind without considering my oral evidence at hearing or my written responses submitted after the hearing” and in paragraph 11 that that he was not given a fair hearing but had “been denied procedural fairness and this was unjust”. I note that prejudgment is a form of actual bias.

9. Actual or apprehended bias are matters which go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that the decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 – 358 [48] per Hayne, Kiefel and Bell JJ.

10. Actual bias in the sense alleged by the First Applicant was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 – 532 [72] as follows:

    [72]…The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

1. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal consisting of Giles, Tobias and McColl JJA said in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]:

   [97]The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

2. The test for actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: see Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 per Gummow A-CJ, Hayne, Crennan and Bell JJ (Michael Wilson & Partners) at 437 – 438 [33].

3. On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 344 – 345. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: see Michael Wilson & Partners at 437 [32].

4. However, there is not a skerrick of evidence that has any tendency to make good the assertion of bias. It was the sponsor herself who contacted the Tribunal to advise of the withdrawal of her sponsorship and the Tribunal on two occasions complied with its obligations under s.359A of the Act by its letters dated 18 November 2015 and 2 March 2017.

5. The First Applicant made comments and responses to those s.359A letters, but in the result the Tribunal expressed a preference for the sponsor’s evidence of the withdrawal of her sponsorship which it found “convincing and compelling evidence” and there was nothing legally unreasonable in the Tribunal so finding in the circumstances of this case.

6. In my opinion, there is no basis for any claim by the First and Second Applicants that they have suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the Tribunal’s decision. The face of the Tribunal’s Decision Record does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias, on the part of the Tribunal member: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J at [38]. There is otherwise nothing in the evidence which lends any support at all to a finding that the Tribunal member did not give a fair hearing or acted in any way unjustly.

7. Accordingly, the allegation of bias fails.

8. Finally, in paragraph 10 of his affidavit the First Applicant complains that the Tribunal did not consider his evidence but rejected it and did not give a reason why it did not find him to be credible. This complaint fails factually, because at [19] of its Decision Record the Tribunal recorded that it had taken the First Applicant’s evidence about the relationship between the sponsor and him into account but in [20] recorded that it preferred the sponsor’s evidence rather than his.

Conclusion

1. Neither of the Grounds establish any jurisdictional error on the part of the Tribunal, nor any denial of natural justice or procedural fairness, and in these circumstances the Application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 27 July 2018