Ye v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 960
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ye v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 960
File number(s): MLG 2527 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 26 September 2024 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the applicant had no standing – where the delegate was not satisfied of a de facto or spouse relationship and, before the tribunal on review, the spouse withdrew sponsorship – where visa applicant sought to reopen the case on grounds of family violence but had no standing under s.347(2)(b) of the Migration Act 1958 (Cth) – no jurisdictional error established, application is dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.5CB, 5F, 338, 347.
Migration Regulations 1994 (Cth) rr.1.15A, 309.211, 309.221.
Cases cited: Huynh v Minister for Immigration and Border Protection [2015] FCA 701 Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 17 April 2024 The Applicant: Appearing in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2527 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUIXIAN YE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The application accepted for filing on 6 October 2021 be dismissed.
3.The Applicant pay the costs of the First Respondent fixed in the scale amount of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
These proceedings relate to an administrative decision made in the course of the Applicant’s attempt to seek review of a delegate’s decision to refuse her a partner visa.
The application before the Court seeks judicial review of the tribunal member’s decision that there was no jurisdiction to conduct the review because the sponsor of the visa had withdrawn the application and the visa applicant had no standing to apply for review.
For the reasons that follow, the application is dismissed with costs.
APPLICATION BEFORE THE COURT
Procedural context
By originating application accepted for filing on 6 October 2021, the Applicant applied to this Court for judicial review of the Tribunal’s 23 August 2021 decision (Sponsor Decision). The form expressed the grounds of review in the following terms:
1. The officer Marvin. PN: 60063344 did not process my spouse application with migration Acts 1958 and consumers fair Trading Act Correctly.
2. Errors or mistakes by this officer in his decision record. The evidences are No any letters or emails from this officer since 2 paid the fee of about $900 but only the sudden call and Refused letter. There are lots of Errors of Government Public Service Act in processing my family violence spouse Application.
3. The Australian Administrative Tribunal (AAT) did not take my case, did not give me legal right or Justice to my family violences spouse case or Review the Errors made by immigration officer for handling my case.
(sic.)
In the course of the proceedings, the Applicant sought to rely on the following additional materials:
(a)First affidavit of the Applicant, filed on 17 September 2021 and deposed on 6 September 2021;
(b)Second and third affidavits of the Applicant, filed on 20 March 2024 and deposed on 18 March 2024;
(c)Fourth affidavit of the Applicant, filed on 2 April 2024 and deposed on 2 April 2024.
In the course of the proceedings, the First Respondent filed the following materials on which it sought to rely:
(a)A response filed on 22 March 2022, by which they sought that the application be dismissed;
(b)An outline of submissions and a list of authorities, filed on 10 April 2024; and
(c)A further list of authorities, filed on 16 April 2024.
The present application proceeded to final hearing before the Court as presently constituted on 17 April 2024. The Applicant appeared in person and made oral submissions with the assistance of a Cantonese interpreter. The First Respondent was represented by a solicitor.
For completeness, this application was heard concurrent with the proceedings in MLG2856/2018. Those proceedings were also commenced by the Applicant in relation to a separate application for a different class of partner visa.
Factual context
The following is a summary of the relevant facts which are uncontentious except where indicated.
The Applicant is a citizen of China.
Having arrived in Australia on a Tourist (Subclass 600) visa on 13 March 2016, the Applicant was married to an Australian citizen (the Sponsor) on 20 August 2016.
On 7 September 2016, the Applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa (a combined partner visa, subject of the other proceedings heard concurrently with this matter). On 20 April 2018, a delegate of the First Respondent refused to grant the partner visa on the basis that the Applicant did not meet the definition of a spouse or de facto partner under ss. 5F or 5CB of the Migration Act 1958 (Cth) (Act). The Applicant subsequently lodged a review of that decision. In that case, the Tribunal found that it did not have jurisdiction to review the decision because the Applicant had failed to pay the prescribed fee in full. That decision is the subject of separate application for judicial review before this Court.
On 15 March 2019, the Applicant lodged an application for a Partner (Provisional) (Subclass 309) visa, being the first step toward obtaining a Partner (Subclass 100) visa. At the time of application, the Applicant was outside of Australia and the application was sponsored by the Australian citizen earlier defined as the Sponsor. It is this visa application that is subject of these proceedings.
On 24 January 2020, the Applicant received written reasons dated 23 January 2020 which provided that a delegate of the First Respondent had refused to grant the visa subject of these proceedings because the relationship between the Applicant and the Sponsor did not meet the definition of “spouse” at reg. 1.15A(3) for purposes of the criteria at clauses 309.211 and 309.221 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (delegate’s decision).
On 20 February 2020, an application for review of the delegate’s decision was lodged with the Administrative Appeals Tribunal (Tribunal). On the face of that application, the Applicant’s name appears in the section entitled “Details of the person applying for review”. By that form, the Applicant also nominated the Sponsor as an authorised recipient of correspondence about her review application.
On 24 February 2020, the Tribunal wrote to the Applicant and explained that the incorrect person had applied for review of the delegate’s decision and that they required an amended application. That correspondence included a reminder of the strict time limitations that applied from the date of the delegate’s decision and which were not able to be extended.
Subsequently, another application for review of the delegate’s decision was lodged with the Tribunal. On the face of that application, the form was dated 1 March 2020 and the Sponsor’s name appears in the section entitled “Details of the person applying for review”. By that form, the Applicant was nominated as an authorised recipient of correspondence about the Sponsor’s review application. By the Tribunal’s acknowledgement letter of 6 March 2020, it was taken to have been lodged on 20 February 2020.
On 19 May 2021, the Sponsor lodged a withdrawal form with the Tribunal which sought to withdraw the application for review of the delegate’s decision.
On 7 June 2021, the Tribunal sent an email to the Sponsor which referred to a telephone conversation with the Sponsor about the withdrawal form and noted that the Tribunal representative had incorrectly advised that the Applicant (as the sponsored visa applicant) was required to consent to withdrawal. By that email, the writer notified the Sponsor that he could unilaterally withdraw the application for review of the delegate’s decision and requested him to advise how he wished to proceed. There is no record of a response from the Sponsor before the Court.
On 16 June 2021, the Tribunal wrote a letter addressed to the Sponsor to confirm that his withdrawal of the application was accepted by the Tribunal and therefore the Tribunal had decided it no longer had jurisdiction to decide the review application. That correspondence was sent to the Applicant in her capacity as a nominated “authorised recipient” of correspondence on behalf of the Sponsor.
Later that same day, the Applicant wrote to the Tribunal seeking to have the case reopened. In doing so she cited that she had been a victim of domestic violence perpetrated by the Sponsor against whom she had obtained a family violence intervention order on 19 May 2021.
On 17 June 2021, the Tribunal responded to the Applicant’s letter by informing her that only the person with review rights could apply for review. And, as the Sponsor was the only person with review rights in relation to this particular type of (Subclass 309 Partner) visa and the Tribunal had accepted the Sponsor’s withdrawal of the application to review the delegate’s decision, it had no power to take further action in relation to the matter.
On 29 June 2021, the Applicant lodged a second application with the Tribunal for review of the delegate’s decision of 23 January 2020. Annexed to that application was a family violence intervention order issued on 18 May 2021 (expired 18 May 2022, made by consent with no admissions of the Sponsor). Also attached to this application was a letter of support from the Eastern Domestic Violence Service.
On 30 June 2021, the Tribunal sent a letter to the Applicant inviting her to comment on the validity of her application made on 29 June 2021. The Tribunal cited that the review of the delegate’s decision of 23 January 2020 had already been decided in circumstances where the Tribunal had already accepted the withdrawal of the application by the Sponsor on 16 June 2021.
On 1 July 2021, the Applicant sent a response to the Tribunal which further detailed her personal circumstances and alleged that the delegate had made significant errors in their decision of 23 January 2020.
On 24 August 2021, the Tribunal informed the Applicant of their decision (which decision was dated 23 August 2021). By those written reasons, the Tribunal decided that it had no jurisdiction to review the decision of the delegate made on 23 January 2020. Those reasons included the following final paragraphs:
Whilst the Tribunal has sympathy for the personal circumstances Ms Ye has outlined in her application and in her written comments regarding the validity of her application, the Tribunal has no discretion to take these matters into account in determining whether or not her application has been made validly. Further, the Tribunal notes that notwithstanding the fact that Ms Ye does not have standing under s.347(2)(b) of the Act to make this application, even if she did, it is out of time: the delegate’s decision was made on 23 January 2020 and the statutory limit for making an application for review expired 70 days after the day she was deemed to have been notified of the delegate’s decision, being 24 January 2020.
As the decision that is the subject of the review application is a decision covered by s 338(5), the application for review could only be made by the sponsor referred to in that subsection. In the present case, the review application was made by the visa applicant herself. As such, the application for review is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.
GROUNDS 1 AND 2
By the first and second grounds of the application it is claimed that the delegate did not process the Applicant’s application for the visa in accordance with the Act, the “consumers fair Trading Act” and “Government Public Service Act” correctly and otherwise that the delegate’s decision was affected by errors or mistakes.
As was explained to the Applicant at hearing, the delegate’s decision is not within the jurisdiction of this Court and is not a decision that this Court is empowered to review or to set aside.
The first and second grounds can not succeed.
GROUND 3
Respective contentions
By the third ground of review, it is alleged that the Tribunal failed to give the Applicant her legal right to justice and did not review errors made by the delegate in the delegate’s decision. She strongly contended for the Court to take the evidence of family violence into account.
For its part, the First Respondent contended that the Tribunal was correct to form the view that the Applicant is not a person who had standing to seek review of the delegate’s decision and therefore was correct in its decision not to review the delegate’s decision. The First Respondent also said it would be an exercise in futility to remit the matter to the Tribunal.
Consideration
The decision subject of the third ground of review was that made on 23 August 2021 and related to the second application for review of the delegate’s decision lodged 29 June 2021. The applicant in that case was the Applicant in these proceedings, not the Sponsor. By the time that application was made, the Sponsor had withdrawn the first application for review of the delegate’s decision and the Tribunal had accepted his withdrawal.
Section 347 of the Act proscribes who may apply for review of a Part 5-reviewable decision. Relevant to the present application:
347 Application for review of Part 5‑reviewable decisions
(2) An application for review may only be made by
…
(b) if the Part 5‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
…
Section 338(5) of the Act defines the types of decisions that will constitute a Part 5-reviewable decision. Relevantly:
338 Definition of Part 5‑reviewable decision
…
(5) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa
In Huynh v Minister for Immigration and Border Protection [2015] FCA 701 (per Griffiths J) the application of ss.338(5) and 347(2)(b) in the context of the question of standing to seek review of an adverse Tribunal decision in respect of a partner visa of the kind subject of these proceedings was considered. Specifically, at [51], it was considered that:
…not every applicant for a visa was entitled to seek a review of an adverse decision by the Tribunal. As noted above, the effect of s 347(2)(b) was that, although the decision to refuse Mr Le a partner visa was an “MRT-reviewable decision”, the only people with standing to seek a review in the Tribunal of such a decision were the sponsor or nominator referred to in the relevant subsection, s 338(5).
The Tribunal’s written reasons of 23 August 2021 disclose its consideration of the above provisions and its reasons for the finding that an application for review of the delegate’s decision could only be made by a sponsor referred to in s.338(5) of the Act. I discern no error in the approach of the Tribunal in this respect and accept that the Tribunal was correct in its conclusion that it had no jurisdiction to determine the application of 16 June 2021 because it was not made by the Sponsor.
The Tribunal’s written reasons also included a notation of the historical context of the earlier application for review of the delegate’s decision which was withdrawn by the Sponsor. That was a matter about which the Applicant had (by email of 30 June 2021) been invited to comment on in relation to the validity of the application. On a fair reading of the Tribunal’s reasons, the decision maker did not find this to be a basis for its finding that it did not have jurisdiction in the matter. The Tribunal also noted in its decision that the Applicant was not (by that email of 30 June 2021) expressly invited to comment on the standing issue but was invited to provide comment on the validity of her application.
In any event, were an error able to be discerned in the Tribunal’s procedure or reasons, it may be accepted that there would be no utility in remittal because the application was bound to fail. At the time the application was made, the criteria at cl.309.211 and 309.213 required that the Applicant be the spouse or de facto partner of an Australian citizen, permanent resident of Australia or an eligible New Zealand citizen and that the Applicant be sponsored by that spouse or de facto partner. In the present case, the Sponsor was an Australian citizen but had withdrawn his sponsorship. The Applicant’s serious allegations of family violence are acknowledged with the greatest of empathy however, unfortunately for the Applicant, family violence is not a matter that could be taken into account with regard to the criteria for the grant of the subject (subclass 309) partner visa as it were at the relevant time of application.
The third ground does not succeed.
CONCLUSION
For the above reasons, I discern no error in the approach of the Tribunal. Accordingly, the application should be dismissed with costs fixed in the amount of $5,500 being less than the scale amount and as sought.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 26 September 2024
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