Yi v Minister for Immigration - [2007] FMCA 1352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Yi v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1352

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal.

Migration Act 1958, ss.359A, 359C, 360

Applicant:

QI YI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2435 of 2005

Judgment of:

Cameron FM

Hearing date:

23 July 2007

Date of Last Submission:

23 July 2007

Delivered at:

Sydney

Delivered on:

23 July 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.
Order 3 of the orders made by Emmett FM on 28 February 2007 be vacated.
The applicant pay the first respondent's costs of the proceedings fixed in the amount of $8,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2435 of 2005

QI YI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application dated 30 May 2007, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) dated 3 August 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”) refusing the applicant’s application for a permanent Partner (Class UK) and a Partner Resident (Class BS) visa.

Background facts

The applicant claimed to have been in a married relationship with William Tam who is the sponsor for the visa which she sought. The Tribunal described the inception and development of their claimed relationship, based on the documents in its file, in the following terms:
The visa applicant claims to have met the sponsor in Sydney in the middle of September outside a disco. They met again a few days later when out with friends and that night the sponsor asked the visa applicant to be his girlfriend. In the ensuing weeks they went on a number of outings and about one month after they had met they became intimate.
When the visa applicant returned to China on 29 September 2002, the parties maintained contact by phone. On her return to Australia on 11 February 2003 their relationship continued. On the visa applicant's 19th birthday (1 May 2003) the sponsor proposed. The parties were married in Stanmore on 7 May 2003. (Court Book (“CB”) pages 238-239)
After the applicant lodged her application for the Tribunal for a review of the Delegate's decision the Tribunal wrote to her pursuant to s.359A of the Migration Act asking her to comment on information set out in that letter and advising her why the information was relevant to the review. The Tribunal says never received a response to that letter.
It appears from the Court Book that the letter was sent in accordance with the procedures set out in the Act but in any event the applicant does not contest that she received the letter. One of the preliminary issues to be determined is whether the applicant sought additional time of the Tribunal to respond to its letter.
In her evidence today the applicant said that her second migration agent had contact the Tribunal advising the Tribunal of her appointment and seeking additional time in which to respond to the s.359A letter. The applicant's own evidence was of no assistance to the Court as she did not participate in whatever communications may have passed between her agent and the Tribunal. However, she did call as a witness in her case Mr Min Wang who was the assistant employed by her migration agent.
Mr Wang said that he sent a fax to the Tribunal enclosing the letter from the applicant advising of the new agent's appointment, together with the 956 form, all of which are found at CB 225-229. Mr Wang also said that included in that fax was a request for additional time to respond to the s.359A letter. Mr Wang says that the Tribunal contacted his employer, Ms Cao advising her that the request for additional time itself was out of time but that that should not present too much of a problem and that the Tribunal would be in contact later to advise whether or not the extension of time had been granted.
His evidence was that no advice was received by the Tribunal on that issue and nothing further was heard until the invitation to the handing down of the decision.
The Minister relied on the affidavit of Rachel Clare White sworn

26 February 2007 who deposed to the relevant contents of the records of the Tribunal. Ms White makes it clear that there is nothing on the Tribunal file to indicate that the letter which Mr Wang believes was sent to the Tribunal seeking additional time was ever received by the Tribunal.
Nothing in the way of fax records from the applicant's agent, nor evidence of Ms Cao, has been put before the Court to corroborate the recollection of Mr Wang, which I accept to be an honest attempt to recall the events of the past, that he requested additional time on behalf of the applicant. However, in light of what Ms White says in her affidavit and also given that she was not required for cross-examination I accept that what she says in her affidavit is a more accurate account of events.
Consequently I find that the Tribunal did not receive a request on behalf of the applicant for an extension of time within which to respond to the s.359A letter. The fact that no response to that letter was received had the effect that the Tribunal was entitled, pursuant to s.359C, to make a decision on the review without taking any further action to obtain the applicant's views on the information. It is also to be noted that the Tribunal was not required to invite the applicant to appear before the Tribunal as a result of the operation of s.360 of the Act.
As the Tribunal was entitled to proceed to determine the review, it had to consider the material which was before it. In its s.359A letter to the applicant the Tribunal set out a number of matters which, as it said in that letter, might suggest to it that the applicant's relationship was not publicly recognised or that she and her sponsor did not have a commitment and awareness of each other’s personal connections as might be expected in a spousal relationship such that it might be led to conclude the relationship was not genuine but contrived for migration purposes.
In the absence of explicatory evidence and arguments advanced on behalf of the applicant, the nature of the matters set forth in the Tribunal's s.359A letter meant that it was not in a position to reach the state of satisfaction necessary such that it could do other than affirm the Delegate's decision. It was for the applicant to satisfy the Tribunal that she was entitled to the visa that she sought. It was for the applicant to put material before the Tribunal such that it could reach the necessary level of satisfaction. Her failure to do so in light of the contents of the s.359A letter inevitably led to the situation that the Tribunal could not reach that level of satisfaction. Consequently no jurisdictional error has been demonstrated on the part of the Tribunal and the application will be dismissed.
As the applicant has been dismissed the Minister has sought an order that the applicant pay his costs in the amount of $8,500 which dates back to the commencement of the proceedings and is an amount intended to include the costs which were previously awarded by Emmett FM on 28 February 2007. There is nothing in the conduct of the proceedings which indicates to me that costs should not follow the event as they would in the ordinary course and there will be an order for costs in the Minister's favour.
Given that Emmett FM originally ordered that the applicant pay the Minister's costs in the amount of $5,500 and that since then there has been an application to set that dismissal aside and the matter has also gone to a hearing today I am satisfied that the Minister's application for costs of $8,500 dating back to the commencement of these proceedings is reasonable and that the amount is a reasonable amount to award. Further, to the extent that it is necessary and for abundant caution I will set aside Emmett FM’s order number 3 dated 28 February 2007 when her Honour awarded the Minister his costs up to that point.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date: 9 August 2007