Yang v Minister for Immigration and Border Protection and Another
[2014] FCCA 20
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YANG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 20 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – Partner visa – whether genuine spousal relationship – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347, 348, 349, 357A, 474, 476 |
| Collins v Minister for Immigration [2003] FMCA 571 Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273; [2013] FMCA 207 Guven v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 311 Ho v Minister for Immigration & Anor [2006] FMCA 1285 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577; [2010] FCAFC 159 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Nguyen v Minister for Immigration & Anor [2007] FMCA 1315 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Re Robinson (unreported, Immigration Review Tribunal of Australia, 27 April 1994) WZAOO v Minister for Immigration & Citizenship & Anor (2012) 134 ALD 332; [2012] FMCA 1026 |
| Jill Filipovic, The Guardian, Online dating levels the playing field for women (24 October 2013) Moonen, Australian Broadcasting Corporation, A Guide to Safe Online Dating (6 February 2012) < Robinson, “Internet Affairs: Guidelines for practitioners” (2006) 2 Family Relationships Quarterly The Macquarie Concise Dictionary (3rd Edition) (The Macquarie Library Pty Ltd, 1999) Jenna Wortham, The New York Times Bits blog, Dear Internet, Thank You for Introducing Us (4 December 2013) < |
| First Applicant: | XIN XIA YANG |
| Second Applicant: | HAO YANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 842 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 6 December 2013 |
| Date of Last Submission: | 6 December 2013 |
| Delivered at: | Perth (by video to Sydney) |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms M Stone |
| Solicitors for the First Respondent: | DLA Piper Australia |
| For the Second Respondent: | Submitting appearance save as to costs |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 842 of 2013
| XIN XIA YANG |
First Applicant
| HAO YANG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the first applicant, a Chinese woman, Ms Xin Xia Yang,[1] who “met” a Chinese man, Mr Liang Lixing,[2] on the internet,[3] and who subsequently married him.
[1] “Ms Yang”.
[2] “Mr Liang”.
[3] There seems little doubt that people can “meet” by means of non-physical interaction such as letters and telephonic or electronic communication (including live video communication) when one has regard to the fact that to “meet” includes coming “into contact or connection with” another person, which can be done by means other than meeting a person by coming into their physical presence: see definition of “meet” in The Macquarie Concise Dictionary (3rd Edition) (The Macquarie Library Pty Ltd, 1999) p.710, and see Re Robinson (unreported, Immigration Review Tribunal of Australia, 27 April 1994) where the parties to a marriage conducted their relationship largely by telephone. The Australian Broadcasting Corporation, Family Relationships Quarterly, The Guardian, and The New York Times have all published articles referring to people who had met online, or the process of people meeting online. See Rebecca Moonen, Australian Broadcasting Corporation, A Guide to Safe Online Dating (6 February 2012) < Elly Robinson, “Internet Affairs: Guidelines for practitioners” (2006) 2 Family Relationships Quarterly; Jill Filipovic, The Guardian, Online dating levels the playing field for women (24 October 2013) Jenna Wortham, The New York Times Bits blog, Dear Internet, Thank You for Introducing Us (4 December 2013) < type="1">
Ms Yang lived in China in 2004. Mr Liang was an Australian citizen and a migration agent in Australia at the time he met Ms Yang.[4] Ms Yang and Mr Liang met in person for the first time on 10 March 2005 in China, and were married the next day. Four days later Mr Liang returned to Australia. Ms Yang’s application for a visa was lodged on 18 July 2005. Mr Liang was her sponsor. Ms Yang and Mr Liang saw each other upon Mr Liang’s return to China from 12 to 22 July 2005 and from 20 December 2005 to 20 February 2006. Mr Liang again returned to China in November 2006, but made no attempt to see Ms Yang. Mr Liang commenced a relationship with another woman[5] in China in 2006. Ms Yang, and her then 11 year old son, Hao Yang who is the second applicant, left China and arrived in Australia on 6 January 2007. Ms Yang and her son were, and remain, citizens of China. At the time Ms Yang moved to Australia she was unaware that Mr Liang was not in Australia. Ms Yang and Mr Liang have not cohabited in Australia, other than for ten days in July 2007 when Mr Liang came to Australia for the purpose of completing Ms Yang’s paperwork for her visa. Apart from the ten days in July 2007 Ms Yang’s contact with Mr Liang was limited. On 10 July 2008 Mr Liang withdrew his sponsorship of Ms Yang. Having divorced Ms Yang in 2008, and married the Other Woman, Mr Liang sponsored the Other Woman for the purposes of a grant of a Partner visa to enter Australia. Ms Yang married a Mr Choi, an Australian citizen, in Australia in October 2011.
[4] Court Book (“CB”) 167 at para.17 and CB 168 at para.24.
[5] “Other Woman”.
The visa applications
Ms Yang applied for a subclass 309 Provisional Spouse visa[6] on 18 July 2005 on the basis of her marriage to Mr Liang. Ms Yang sought to satisfy the primary criteria for the grant of a Partner visa. Her son applied as a dependant. The Provisional Spouse Visa was refused by a decision of a delegate[7] of the first respondent.[8] The First Delegate’s Decision was reviewed by the Migration Review Tribunal[9] which remitted the Provisional Spouse Visa application for further consideration. The Provisional Spouse Visa application was granted on 29 December 2006. Ms Yang and her son arrived in Australia on the Provisional Spouse Visa on 6 January 2007.
[6] “Provisional Spouse Visa”.
[7] “First Delegate’s Decision” and “First Delegate” respectively.
[8] “Minister”.
[9] “Tribunal”.
On 10 July 2008 Mr Liang wrote to the Department and advised that he and Ms Yang had separated and that he wished to withdraw his sponsorship. Ms Yang was advised of this information in a letter dated 13 August 2008 and invited to respond.[10] Ms Yang’s response was received on 11 September 2008.[11] Ms Yang agreed that the relationship had ended and claimed that Mr Liang had sexually assaulted her. Ms Yang provided a psychologist's report dated 4 September 2008 which repeated those claims.[12] On 14 December 2008 Ms Yang provided statutory declarations relating to family violence which repeated her claims of sexual assault.[13]
[10] CB 65.
[11] CB 66-77.
[12] CB 74-77.
[13] CB 81-97.
A second delegate of the Minister made a decision refusing the grant of a Partner Visa (formally, a Partner (Migrant) (Class BC) visa) to Ms Yang, and her son, on 28 February 2011.[14] The Second Delegate found that Ms Yang would not have met cl.100.221 of the Migration Regulations 1994 (Cth)[15] had the relationship not ceased, as the Second Delegate was not satisfied that Ms Yang and Mr Liang had ever been in a relationship which satisfied the definition of “spouse” in reg.1.15A of the Migration Regulations.
[14] CB 114-122: “Second Delegate” and “Second Delegate’s Decision” respectively.
[15] “Migration Regulations”.
Ms Yang and her son applied to the Tribunal for review of the Second Delegate’s Decision on 17 March 2011.[16] On 11 December 2012 Ms Yang, and her son, were invited to attend a hearing before the Tribunal on 14 March 2013.[17] Ms Yang attended a hearing before the Tribunal on 14 March 2013.[18]
[16] CB 123-141.
[17] CB 144-146.
[18] CB 149.
By letter dated 15 February 2013 Ms Yang and her son were invited to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the Second Delegate’s Decision.[19] The information put to Ms Yang and her son in the Tribunal Letter was as follows:
a)Mr Liang had sponsored another person for a spouse visa on 27 March 2009, and had stated that he had lived with that person since December 2006 and married her on 27 February 2009;[20]
b)Mr Liang had advised the Department that he had married Ms Yang on the second day after he met her and that he had been used by Ms Yang who had a lover at the time they were married;[21] and
c)Mr Liang had left Australia on 22 November 2006 and returned on 9 July 2007. He left Australia again on 19 July 2007.[22]
[19] CB 150-153 (“Tribunal Letter”).
[20] CB 151.
[21] CB 151.
[22] CB 152.
The relevance of the information put to Ms Yang and her son in the Tribunal Letter was said to be as follows:
a)the information that Mr Liang had formed a new relationship in late 2006 may lead the Tribunal to infer that Mr Liang no longer had a commitment to Ms Yang to live with her as husband and wife to the exclusion of all others;[23]
b)the information about Mr Liang being used by Ms Yang may lead the Tribunal to infer that Ms Yang never intended to have a commitment to a shared life as husband and wife to the exclusion of all others;[24]
c)the cumulative effect of the information could lead the Tribunal to infer that Ms Yang and Mr Liang never had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was never genuine and continuing;[25] and
d)the information about Mr Liang's movements was relevant because at the Tribunal hearing Ms Yang had given evidence that she had not known that Mr Liang had left Australia in November 2006, and that she first became aware that Mr Liang was not in Australia after her arrival in Australia in January 2007. This could lead the Tribunal to find that Ms Yang and Mr Liang were not in regular communication at the end of 2006, which could lead it to infer that they were never in a genuine and continuing relationship.[26]
[23] CB 151.
[24] CB 151.
[25] CB 151.
[26] CB 152.
Ms Yang responded to the information in the Tribunal Letter in a statement received by the Tribunal on 11 March 2013,[27] which attached a letter purportedly from Mr Liang to the applicant dated 8 August 2005.[28] Ms Yang’s Statement was set out by the Tribunal in its decision on 28 March 2013.[29]
[27] CB 154-159 (“Ms Yang’s Statement”).
[28] CB 160-161.
[29] “Tribunal Decision”. The Tribunal Decision is at CB 165-176. Ms Yang’s Statement is set out in the Tribunal Decision at CB 171 at para.39.
Tribunal Decision
The Tribunal Decision affirmed the Second Delegate’s Decision not to grant Ms Yang and her son a Partner Visa.[30]
[30] CB 175.
The Tribunal found that Ms Yang and Mr Liang were no longer in a relationship, noting that they had divorced and Ms Yang had re-married.[31] Clause 100.221(2) of the Migration Regulations was, therefore, not met as Ms Yang was not the spouse of the sponsor.[32]
[31] CB 172 at para.41.
[32] CB 172 at para.42.
The Tribunal then considered whether Ms Yang satisfied clause 100.221(4) of the Migration Regulations. The Tribunal found that Ms Yang and Mr Liang had been married under a recognised marriage, pursuant to reg.1.15A(1A)(a) of the Migration Regulations.[33] The Tribunal was not, however, satisfied that Ms Yang and Mr Liang ever had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by reg.1.15A(1A)(b)(i) of the Migration Regulations, or that the relationship was ever genuine and continuing, as required by reg.1.15A(1A)(b)(ii) of the Migration Regulations.[34] The Tribunal reached this conclusion for the following reasons:
a)Ms Yang and Mr Liang were married only one day after meeting in person. Since February 2006 Ms Yang had only physically seen Mr Liang for 10 days in July 2007. Mr Liang returned to China in November 2006 but made no attempt to see Ms Yang, and she had not been aware that he was in China. Mr Liang was still in China when Ms Yang moved to Australia in January 2007, and she had not been aware that he was in China until after she arrived in Australia;[35]
b)Ms Yang and Mr Liang had never jointly owned any real estate or major assets, had no joint liabilities and no pooled financial resources, and had never lived together for any significant period of time;[36]
c)there was no evidence that Ms Yang and Mr Liang undertook any particular social activities;[37] and
d)Mr Liang had subsequently sponsored the Other Woman to come to Australia, and stated that they had been in a relationship since November 2006, that is, before Ms Yang’s Provisional Spouse Visa was granted.[38]
[33] CB 173 at para.47.
[34] CB 175 at para.60.
[35] CB 173-174 at paras.49-50.
[36] CB 174 at paras.51 and 53.
[37] CB 174 at para.55.
[38] CB 174 at para.57.
The Tribunal also had regard to factual matters which might be said to support the notion that there was a genuine spousal relationship between Ms Yang and Mr Liang. Those matters included that:
a)Ms Yang lived after her arrival in Australia in a property leased by Mr Liang;[39]
b)there were statements from various people, including Ms Yang’s younger brother and Mr Liang’s son, attesting to the relationship between Ms Yang and Mr Liang;[40]
c)Ms Yang and Mr Liang used to communicate with each other for at least part of the period that they claimed to have been in a relationship;[41] and
d)Ms Yang and Mr Liang were legally married.[42]
[39] CB 174 at para.52.
[40] CB 174 at para.55.
[41] CB 174 at para.56.
[42] CB 174 at para.56 and CB 175 at para.59.
The Tribunal gave consideration to the abovementioned factors when assessing whether or not on a consideration of all relevant factors, there was a genuine spousal relationship between Ms Yang and Mr Liang.
The Tribunal concluded, on the basis of the evidence before it, that Ms Yang and Mr Liang did not satisfy the definition of “spouse” and, therefore, did not meet the requirements of cl.100.221(4) of the Migration Regulations.[43] As there was no genuine relationship, the Tribunal did not go on to consider the domestic violence provisions in Division 1.5 of the Migration Regulations.[44]
[43] CB 175 at paras.60-61.
[44] CB 175 at para.63.
Legislative provisions
A Subclass 100 Partner Visa is the permanent visa which is granted to persons who hold a Provisional Spouse Visa. Both the Provisional Spouse Visa and Partner Visa are applied for at the same time. In the usual course the Provisional Spouse Visa needs to be held for at least two years before the Partner Visa can be granted.[45]
[45] Migration Regulations, Sch.2, cl.100.221(2).
As at the date of the visa application, 18 July 2005, the relevant criteria in Schedule 2 of the Migration Regulations were as follows:
100.22 Criteria to be satisfied at time of decision
100.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or
(ii) was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:
(A) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or
(B) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and
(b) the applicant is the spouse of the sponsoring spouse; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
…
(4) The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and …
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
…
The term “spouse” was relevantly defined in reg.1.15A of the Migration Regulations at the time of the visa application as follows:
(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.
(2) …
(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.
(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
There have been amendments to these criteria since the date of Ms Yang’s application.[46] The Tribunal did not, however, consider Ms Yang’s claim of family violence, for reasons set out below.[47] The amendments to the Migration Regulations are, therefore, not relevant in these proceedings.
[46] Migration Amendment Regulations 2007 (No 13) (Cth) and Migration Amendment Regulations 2009 (No 12) (Cth).
[47] See paras.28-35 below.
The application and grounds of review
The application sets out three grounds of review as follows:
1, I am a Chinese citizen and have been in a genuine spouse relationship with my sponsor since I arrived in Australia. The Sponsor dumped me and told many lies to DIAC and MRT, however the member never trusted my words
2, It is not fair for me not to be granted spouse visa as I have been suffered serious mental problems and my son has been a victim in this application.
3, I am very upset that the tribunal did not believe me, and they rather believe my sponsor who has serious character issue. I hope the court can give me a fair decision
Under the heading “Orders sought by Applicant” a further three issues are raised, which appear to be intended as “grounds” of review. These are as follows:
1, I disagree with Immigration and MRT’s decision. They did not consider that I have been in a genuine relationship as husband and wife with my sponsor while I applied for subclass 100.
2, MRT did not consider the fact that I have been cheated by my sponsor and I have been physically suffered from serious depression.
3. MRT member questioned me at hearing made me feel very up sad. The member did not trusted me and did not well consider all my explanation and supporting documents.
The Court will treat the above “grounds” as grounds 4 to 6 respectively.
Consideration
Ground 1
Ground 1 appears to allege that the Tribunal:
a)did not consider Ms Yang’s claim to have been in a genuine spousal relationship with Mr Liang; or
b)should have believed Ms Yang, and found, on the basis of Ms Yang’s claims, that she was in a genuine relationship with Mr Liang, and that Mr Liang “dumped” Ms Yang and “told many lies” about their relationship, and, at least implicitly, Mr Liang ought not to have been believed.
The Tribunal understood the test to be applied was whether Ms Yang and Mr Liang were in a genuine spousal relationship, and set out the test, and the additional particular considerations, in the Tribunal Decision.[48] That test, and the additional particular considerations, was applied by the Tribunal in the Tribunal Decision in reaching the conclusion to affirm the Second Delegate’s Decision not to grant Ms Yang and her son Partner Visas.[49] One need only read this ground of review and the admission implicit in the statement that Mr Liang “dumped” Ms Yang to realise that Ms Yang’s case is fraught with a fundamental difficulty when seeking to establish a genuine spousal relationship.
[48] CB 167 at paras.12-15 and CB 172-173 at paras.41-46.
[49] CB 173-175 at paras.47-63.
The Tribunal understood Ms Yang’s claim. The Tribunal set out the circumstances of the relationship, both generally[50] and in relation to the particular considerations.[51] The Tribunal took all relevant matters[52] taken into account by the Tribunal, including but not limited to:
a)the circumstances of their meeting;
b)their being married one day after meeting in person;
c)the amount of time that they spent together, both in China and Australia;
d)the amount of time that they spent apart, including time spent apart when Ms Yang did not know where Mr Liang was;
e)Mr Liang’s relationship with the Other Woman for the majority of the term of the claimed relationship between Ms Yang and Mr Liang; and
f)the evidence of their financial, social and family relations,
each of which were relevant and proper matters for the Tribunal to consider in determining whether or not there was a genuine spousal relationship between Ms Yang and Mr Liang. The Tribunal was aware that Ms Yang’s essential response to the various matters put was that from her perspective the relationship was always genuine, and that at the time it was occurring she was unaware that Mr Liang had cheated on her by forming a relationship with the Other Woman in November 2006.[53] Further, the Tribunal took into account the fact that Ms Yang and Mr Liang were legally married, and that Ms Yang lived in property leased in Mr Liang’s name, and that there were witness statements from some relatives and friends in support of the relationship, and again, that Ms Yang maintained that she was genuine in wanting to have a shared life with Mr Liang.[54] The weight to be given to this evidence, or such of the evidence as the Tribunal considered plausible, was a matter for the Tribunal as part of its fact-finding function.[55] The Tribunal formed the view that Ms Yang’s evidence was not plausible, and that she was not credible in her evidence regarding her relationship with Mr Liang. Whether or not a witness is a credible witness is a matter for the administrative fact-finder, in this case the Tribunal. The Tribunal was entitled to make adverse credibility findings, unless they were based on no evidence or were so unreasonable as to be unsafe.[56] It was patently open on the facts for the Tribunal to find that this was not a genuine relationship, and that there was not a mutual commitment to a shared or genuine relationship between Ms Yang and Mr Liang, based solely on Mr Liang’s conduct. There was no dispute that Mr Liang acted in the manner that he did in terms of his relationship with the Other Woman, and as to the other aspects (such as an effective absence of cohabitation or communication) of his relationship with Ms Yang. Even if Ms Yang were credible, and had been believed by the Tribunal, based on Mr Liang’s actions the Tribunal was entitled to find, and did find that he was not committed to a mutual or genuine ongoing spousal relationship.[57] Thus, irrespective of Ms Yang’s views and beliefs, and irrespective of whether the Tribunal believed her or not, her claims could never have succeeded, because of the Tribunal’s views concerning Mr Liang’s actions.
[50] CB 173-174 at paras.49-50.
[51] CB 174-175 at paras.51-59.
[52] Migration Regulations, reg.1.15A(3), and see CB 173-175 at paras.47-59.
[53] CB 174 at para.50.
[54] CB 175 at para.59.
[55] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 and 42 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed).
[56] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J (“Durairajasingham”); Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577 at 594-595 per Buchanan J; [2010] FCAFC 159 at para.63 per Buchanan J (“SZOCT”); WZAOO v Minister for Immigration & Citizenship & Anor (2012) 134 ALD 332 at 346 per Lucev FM; [2012] FMCA 1026 at para.30 per Lucev FM (“WZAOO”).
[57] CB 174 at para.57 and CB 175 at para.59.
The Tribunal was not satisfied that Ms Yang and Mr Liang ever had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing. That conclusion was open to the Tribunal for the reasons which it gave. It is not open to the Court to review a finding of fact reasonably open to the Tribunal, and insofar as Ms Yang’s ground 1 seeks to do so, it seeks impermissible merits review.
At hearing Ms Yang suggested that the Tribunal was wrong not to grant a Partner Visa because she had earlier been granted a Provisional Spouse Visa. The fact that a Provisional Spouse Visa was granted in December 2006 was a matter of which the Tribunal was aware,[58] but was not a matter which precluded the Tribunal from forming a view that there was not a genuine spousal relationship when considering whether to grant a Partner Visa. The final assessment as to whether a Partner Visa is to be granted includes evidence covering the period from 2006 to 2008. Some of that evidence, such as the evidence of Mr Liang’s relationship with the Other Woman, and the effective absence of cohabitation or communication between Ms Yang and Mr Liang for a large part of that period, is significant evidence which had to be considered by the Tribunal, and which, in the circumstances of this case, satisfied the Tribunal that there was not a genuine spousal relationship between Ms Yang and Mr Liang. The Tribunal considering the granting of a Partner Visa “must make its own assessment of …[the] evidence”, and is not bound by an earlier decision of the Tribunal granting a Provisional Spouse Visa.[59]
[58] CB 166 at para.4.
[59] Ho v Minister for Immigration & Anor [2006] FMCA 1285 at para.28 per Phipps FM.
For the above reasons, ground 1 is not made out.
Ground 2
Ground 2 alleges that the Tribunal failed to consider that Mr Liang had caused Ms Yang to suffer mental problems, and that Ms Yang’s son had been a victim, in the Partner Visa application. The Tribunal summarised Ms Yang’s evidence noting that:
a)Ms Yang asserted inappropriate sexual conduct without her consent by Mr Liang at various times during the ten days in which he returned to Australia in July 2007, but not before;[60] and
b)Mr Yang asserted she suffered psychologically and had trouble sleeping, and relied on sleeping pills, as a consequence of Mr Liang’s conduct, and that she saw a health professional about her psychological state in 2008.[61]
[60] CB 170 at para.35.
[61] CB 170 at para.35.
The Tribunal also noted a psychological report dated 4 September 2008 prepared for Ms Yang and observed that:
a)Ms Yang’s evidence appeared to be inconsistent with the content of that report which indicated that prior to July 2007 when Ms Yang and Mr Liang were living together in China that there was inappropriate sexual conduct without Ms Yang’s consent, and that she became “extremely fearful of Mr Liang’s presence and … the anticipation of his return”;[62] and
b)the alleged conduct was inconsistent with what the Tribunal had been told, in response to which Ms Yang said that the contents of the psychologist’s report were correct and that she had not mentioned this previously as she did not want to “bring up bad memories”.[63]
[62] CB 170 at para.36.
[63] CB 170 at para.36.
The Tribunal queried with Ms Yang why she continued with the Partner Visa application in circumstances where she was so fearful of Mr Liang, to which she responded that she thought it was her duty as a wife to fulfil Mr Liang’s requests.[64] Ms Yang also said that she “never had a thought to leave Mr Liang even though those incidents occurred.”[65]
[64] CB 170 at para.36.
[65] CB 170 at para.36.
In Collins v Minister for Immigration[66] although the Federal Magistrates Court of Australia[67] found that it was not necessary to consider the matter of domestic violence, the Federal Magistrates Court held that determination of whether there was a genuine spousal relationship was, as a matter of law, to be considered by the Tribunal as a primary issue, and that “the clear inference and basis upon which that regulation [as to domestic violence] is to be applied is that [it] applies to the relationship which at least at one point could be regarded as a genuine spousal relationship” and that “the issue of domestic violence … would only be a saving grace in circumstances where the genuine spousal relationship had already been established.”[68]
[66] [2003] FMCA 571 (“Collins”).
[67] “Federal Magistrates Court”.
[68] Collins at para.42 per McInnis FM.
In Guven v Minister for Immigration & Anor[69] the Federal Magistrates Court was dealing with a decision of the Tribunal in which the Tribunal inclined to the view that cll.100.221(4)(b) and 100.221(2)(b) of the Migration Regulations (which were in the same form as the clauses presently under consideration, with only minor wording changes of form not substance) “require that before determining whether domestic violence is taken to have occurred … the Tribunal must first determine whether the sponsor and the review applicant were in a genuine spousal relationship … Only where the Tribunal finds such a relationship existed is it required to make a further finding in relation to claims of domestic violence.”[70]
[69] [2006] FMCA 311 (“Guven”).
[70] Guven at para.22 per Hartnett FM, citing para.27 of the decision of the Tribunal in that matter.
In Nguyen v Minister for Immigration & Anor[71] the Tribunal had made brief reference to the evidence concerning domestic violence in its findings, but went on to find that the parties were not in a genuine spousal relationship, and the Federal Magistrates Court found no jurisdictional error in circumstances where the Tribunal had, albeit briefly, considered the evidence as to domestic violence as part of the circumstances providing evidence as to the genuineness of the relationship in that case. No jurisdictional error was found in the circumstances where the Tribunal did not otherwise independently consider the allegations of domestic violence, and the issue was a narrow one as to whether the Tribunal considered that evidence as relevant to the question of whether there was a pre-existing relationship.[72] As such, Nguyen is not directly relevant to the question in issue in these proceedings, namely, whether having found that there was no genuine spousal relationship the Tribunal was obliged to consider Ms Yang’s claims of domestic violence.
[71] [2007] FMCA 1315 (“Nguyen”).
[72] Nguyen at paras.15 and 22-26 per McInnis FM.
The judgments of this Court’s predecessor, the Federal Magistrates Court, in Collins and Guven ought, as a matter of comity, be followed by this Court unless they are plainly wrong.[73] With respect, this Court sees no error in the judgments in Collins and Guven, and will, therefore, follow them. In any event, the use of the phrase “sponsoring spouse” in cl.100.221(4)(b) and (c) as the person with whom an applicant’s relationship must have ceased, and who must have committed the domestic violence (now family violence) suffered by an applicant, plainly imports the definition of “spouse” in reg.1.15A of the Migration Regulations as a defining feature of the person with whom the applicant must have been in a relationship, and who is required to have committed the domestic violence, and therefore imports the requirement that there be a genuine spousal relationship before the issue of domestic violence must be considered.
[73] Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273 at 283 and 292 per Lucev FM; [2013] FMCA 207 at paras.26(c) and 60 per Lucev FM, and cases there cited.
The Tribunal, as indicated above, correctly identified the relevant question to be determined, being whether Ms Yang and Mr Liang did in fact live in a genuine spousal relationship. Having found that there was never a genuine spousal relationship the Tribunal did not need to consider Ms Yang’s claims of domestic violence.[74]
[74] Collins at para.42 per McInnis FM; Guven at paras.22-26 per Hartnett FM.
For the above reasons, ground 2 is not made out.
Ground 3
In ground 3 Ms Yang asserts that she is “very upset” because the Tribunal did not believe her, and believed Mr Liang instead, and expresses the hope that the Court can give her a fair decision. The fact that Ms Yang may be “very upset” that the Tribunal did not believe her is irrelevant. The fact that the Tribunal did not believe her was a matter for the Tribunal alone, particularly in the circumstances of this case where there are sufficient facts to warrant a finding adverse to Ms Yang’s credibility in relation to her assertions about the nature of her relationship with Mr Liang.[75] Likewise, the fact that the Tribunal chose to believe Mr Liang was a matter for the Tribunal alone. It is not the role of the Court to simply substitute its findings of fact or credibility for those of the Tribunal.[76] Ms Yang’s “hope” that the Court can give her “a fair decision” misses the fundamental point that this Court can, on judicial review, only interfere if a jurisdictional error is established. Jurisdictional error may, in limited circumstances, be established by a lack of procedural fairness in the Tribunal’s decision-making process.[77] It is not, however, a lack of procedural fairness that is complained of in this ground, but rather, the Tribunal’s fact finding and assessment of credibility. The Tribunal having correctly identified the issues to be determined and the law to be applied, and accurately set out the evidence, fact finding and assessment of credibility were matters solely for the Tribunal. No jurisdictional error is established by this ground, and consequently this ground is not made out.
[75] CB 173-174 at para.50.
[76] See Durairajasingham, SZCOT and WZAOO cited at fn.58 above.
[77] Migration Act, s.357A.
Ground 4
In ground 4 Ms Yang asserts that she disagrees with the Second Delegate’s Decision and the Tribunal Decision. The Second Delegate’s Decision is not reviewable by this Court.[78] That was the function of the Tribunal on the application for review of the Second Delegate’s Decision.[79] The fact that Ms Yang disagrees with the Tribunal Decision is also irrelevant: disagreement does not establish jurisdictional error. Nor is jurisdictional error established by the statement that the Tribunal did not consider that there was a genuine spousal relationship between Ms Yang and Mr Liang. That merely states the Tribunal’s conclusion, and a reason for affirming the Second Delegate’s Decision, without identifying any jurisdictional error. In any event, for reasons set out above in relation to ground 1 the finding that there was not a genuine spousal relationship between Ms Yang and Mr Liang was open on the facts, and a conclusion arrived at by the Tribunal without jurisdictional error. For those reasons, ground 4 is not made out.
[78] Migration Act, ss.474 and 476.
[79] Migration Act, ss.338, 347, 348 and 349.
Ground 5
Ground 5 asserts that the Tribunal did not consider the following facts:
a)that Ms Yang had been cheated by Mr Liang; and
b)that Ms Yang had physically suffered from serious depression.
The Tribunal set out Ms Yang’s claim that Mr Liang cheated on her, which claim was contained in Ms Yang’s Statement where Ms Yang wrote as follows:
If you say there is a deception, he is [the] one who cheated on me. According to information provided by the Immigration Department, he started living with [another] woman as early as November 2006, and he signed in front of a JP with me in July 2007 and also had sex with me. All this, I leave the judgment to you, is not clear enough that he cheated on me and on the Immigration Department? Isn’t such behaviour a smear on the Australian law and legal system?[80]
[80] Ms Yang’s Statement, CB 172 at para.39.
The Tribunal Decision noted that Ms Yang’s Statement asserted that “Mr Liang had cheated on her by forming a relationship with another woman in November 2006.”[81] This was in the context of Mr Liang’s forming a relationship with the Other Woman. The Tribunal considered the cheating issue, together with the relationship with the Other Woman, Mr Liang’s withdrawal of sponsorship and the commencement of divorce proceedings. The Tribunal concluded that it was apparent there was limited communication between Ms Yang and Mr Liang, and that at various points Ms Yang was not aware of what country Mr Liang was in, and that she had no knowledge of his activities in China.[82] The Tribunal went on to consider the fact that Mr Liang had formed a relationship with the Other Woman in November 2006, a factual circumstance which formed the basis for the allegation of cheating by Ms Yang, and found that that was evidence that Mr Liang was never committed to the relationship with Ms Yang, given also that the relationship with the Other Woman was a relationship entered into before Ms Yang was granted a Provisional Spouse Visa.[83]
[81] CB 174 at para.50.
[82] The Tribunal Decision refers to “Ms Liang was not aware of what country Mr Liang was in”, but it is apparent that the former reference to “Mr Liang” is intended to be a reference to Ms Yang. CB 174 at para.50.
[83] CB 174 at para.57.
It is apparent from the foregoing that the Tribunal did consider Ms Yang’s allegation that Mr Liang had cheated on her. As such, the claim that the Tribunal did not consider that matter, is not made out.
Ms Yang also claimed that the Tribunal did not consider the fact that she had physically suffered from serious depression.
The Tribunal set out the fact that Ms Yang told the Tribunal that Mr Liang’s behaviour “caused pressure to her mental state and that she did not like to recall how he used to treat her.”[84] Thereafter she provided details of what she alleged to be sexually inappropriate conduct without her consent involving yelling but no other physical violence. Ms Yang specifically told the Tribunal that “she has suffered psychologically … [and] has trouble sleeping” and that she “relied on sleeping pills” and that she had a “psychological burden and a bad self-image”.[85] Ms Yang also provided the Tribunal with a psychologist’s report to which the Tribunal referred in the Tribunal Decision.[86]
[84] CB 170 at para.35.
[85] CB 170 at para.35.
[86] CB 170 at para.36.
The Tribunal set out in full Ms Yang’s Statement which:
a)refers to Mr Liang affair with the Other Woman and that this “caused enormous hurts an[d] injury to me personally”;[87] and
b)states that she and her son were “the real victims of this whole drama. Also traumatised and to see psychologist the treatment and every night, I had to take two sleeping tablets in order to fall asleep.”[88]
[87] CB 171 at para.39.
[88] CB 172 at para.39.
The Tribunal specifically observed that in forming an opinion in relation to whether Ms Yang and Mr Liang had a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis, it:
… had regard to all of the circumstances of the relationship, including evidence of the … social aspects and the nature of Ms Yang’s and Mr Liang’s household and their commitment to each other as required by the legislation discussed earlier in these reasons. The tribunal’s assessment in relation to each of these factors appears below.[89]
[89] CB 173 at para.48.
It is therefore evident when considered in conjunction with the Tribunal’s earlier statements in relation to what Ms Yang had told the Tribunal as to her mental state, and the statements set out in Ms Yang’s Statement which are set out in the Tribunal Decision, that the Tribunal was aware that Ms Yang claimed to be suffering from a psychological condition, and that there was a psychologist’s report related to Ms Yang’s claims. And, although the Tribunal in its assessment of relevant factors as to whether or not there was a genuine spousal relationship, has not specifically adverted to Ms Yang’s evidence concerning her psychological condition, the Tribunal has said that it has had “regard to all of the circumstances of the relationship”, and that must include those circumstances which it has specifically set out as being matters that Ms Yang told the Tribunal at the Tribunal Hearing or to which she made reference in Ms Yang’s Statement. It is not necessary for the Tribunal in forming a final view to advert to every single piece of evidence, and nor is it necessary for this Court to minutely analyse and dissect the reasoning in the Tribunal Decision.[90] In the Court’s view, the Tribunal did have regard to the evidence concerning Ms Yang’s psychological condition or conditions to the extent necessary in determining whether or not there was a genuine spousal relationship, and having determined that there was not a genuine spousal relationship, that evidence was not of any further relevance to any issue in these proceedings. The Tribunal having considered the psychological evidence, this aspect of ground 5 is also not made out.
[90] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In this case, the Tribunal was aware of, and must be considered to have considered each of the matters that Ms Yang asserts the Tribunal did not consider, and, therefore, the question of failure to consider does not arise in this case because those facts were considered.
In all of the above circumstances, ground 5 is not made out.
Ground 6
Ground 6 complains that the Tribunal member questioned Ms Yang at hearing and made her “feel very up sad”. Whether this is meant to indicate that Ms Yang was made to feel very sad, or very upset, does not matter, as how Ms Yang felt in response to the Tribunal member’s questioning is irrelevant in circumstances where there is no evidence which suggests bias or coercion of any kind by the Tribunal member. The fact that a person is made to feel sad or upset at hearing, whether by the questioning by the Tribunal member or otherwise, does not found jurisdictional error, which is the only basis upon which this Court can grant relief. Likewise, the assertion that the Tribunal member did not trust Ms Yang fails for the same reasons.
Ms Yang alleges that the Tribunal did not “well consider” all of her evidence and supporting documents. No particulars are provided. The Tribunal summarised Ms Yang’s evidence at the hearing before it, and set out in full Ms Yang’s Statement which was a response to the Tribunal Letter putting to Ms Yang information which might be the reason, or part of the reason, for affirming the Second Delegate’s Decision. The Tribunal also considered the other factors for consideration, and did so by reference to evidence, including evidence led by Ms Yang, in relation to those factors.[91] The Tribunal also summarised the evidence before it which supported Ms Yang’s claim that a genuine relationship had existed.[92] For the reasons which it gave, the Tribunal was not satisfied that the relationship was ever a genuine spousal relationship. This conclusion was open to it for the reasons which the Tribunal gave. There is no evidence that the Tribunal did not fully and properly consider all relevant issues having regard to the evidence and information (including documents) which were before it.
[91] CB 174 at paras.51-58.
[92] CB 175 at para.59.
In all of the above circumstances, ground 6 is not made out.
Conclusion and orders
The Court has concluded that:
a)Ms Yang’s grounds have not been made out, and she has failed to establish any jurisdictional error in the Tribunal Decision;
b)there being no jurisdictional error established on the part of the Tribunal, the Tribunal Decision is a privative clause decision within the meaning of s.474(2) of the Migration Act and is not amenable to judicial review by this Court; and
c)it follows that the application must be dismissed, and there will be an order accordingly.
There will also be an order amending the name of the first respondent to the “Minister for Immigration & Border Protection”.
The Court will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 31 January 2014
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