YU v Minister for Home Affairs

[2018] FCCA 3757

FEDERAL CIRCUIT COURT OF AUSTRALIA

YU & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3757

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Partner (Temporary) (Class UK) visas – whether the Tribunal failed to comply with its statutory requirements – whether the Tribunal’s adverse findings were legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 476

First Applicant: BO YU

Second Applicant: ZICHENG XIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2144 of 2018

Judgment of: Judge Street

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Sydney

Delivered on: 17 December 2018

REPRESENTATION

The first applicant appeared in person.

Solicitors for the Respondents: Ms K Garaty
HWL Ebsworth

ORDERS

1. The oral application for an adjournment is dismissed.

2. The application is dismissed.

3. The applicants pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 17 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2144 of 2018

BO YU

First Applicant

ZICHENG XIN

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 July 2018 affirming a decision of the delegate not to grant the applicants Partner (Temporary) (Class UK) visas.

2. The second applicant was included as a member of the family unit and the first applicant applied for the visa on the basis of her relationship with a sponsor. The first applicant is a citizen of China. The visa was applied for on 28 October 2015. On 23 January 2017, the delegate found the applicants failed to meet the criteria for the grant of the visas.

3. The applicants applied for review on 24 January 2017. The applicants were invited, by letter dated 1 May 2018, to attend a hearing on 14 June 2018 to give evidence and present arguments. The applicants appeared on that date, together with their migration representative. Following the hearing, the applicants were given further time of one week to provide further information. Steps were taken by the Tribunal during the course of the hearing to comply with the obligations under 359AA of the Act.

4. The Tribunal in its reasons identified the background of the applicants visa application. The Tribunal found the sponsor was evasive in responding to questions. The Tribunal was not satisfied that the applicant and the sponsor are credible.

5. The Tribunal identified that the first applicant and the sponsor were married on 4 October 2015 and that the parties had to meet the criteria under s 5F(2)(a) to (d) of the Act, and in particular, r 1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”).

6. The Tribunal identified that the first applicant and the sponsor did not have any joint ownership of real estate or other major assets or any joint liabilities and did not have any financial legal obligation in respect of each other. The Tribunal referred to a joint account statement and found it provided little insight as to how the first applicant and the sponsor managed their financial affairs. The Tribunal identified a number of specific transactions in respect of which there was no other information to identify the nature of those transactions. The Tribunal did not accept the first applicant and the sponsor pooled their finances or shared household expenses. The Tribunal found the first applicant and the sponsor had provided inconsistent evidence about their financial matters and did not appear to have a mutual understanding of their day-to-day finances.

7. The Tribunal found the second applicant lives independently of the first applicant and the sponsor in an apartment owned by the first applicant. The Tribunal found the first applicant and the sponsor provided inconsistent evidence about the support they provide to the second applicant. The Tribunal expressly referred to the first applicant and the sponsor having lived at two different addresses and to their evidence of sharing housework. The Tribunal found the first applicant and the sponsor gave inconsistent evidence about their social activities.

8. The Tribunal referred to the second visa applicant asserting that the relationship was genuine. The Tribunal expressly referred to information that was put to the first applicant that the sponsor had entered into a contrived marriage with his previous spouse and that in that application the delegate had found the marriage was a business arrangement. The Tribunal expressly referred to putting this information to the applicant in accordance with the relevant provision which was noted on the hearing record in respect of complying with s 359AA of the Act. The Tribunal identified the response that was provided in respect of the opportunity given in accordance with the requirements of section 359AA. The Tribunal found the evidence advanced in that regard by the parties was inconsistent in relation to what was said to have been deposited into a joint bank account.

9. The Tribunal also referred to living expenses and raised the inconsistency in the evidence with the first applicant. The Tribunal referred to the inconsistency in relation to the second applicant’s studying at university. The Tribunal referred to the second applicant’s evidence about living in an apartment and paying rent being inconsistent with the first applicant’s evidence. The Tribunal expressly referred to the sponsor stating that the parties lived in a two-bedroom detached granny flat at the back of a house and the sponsor then saying that they lived in a two-bedroom, level 1, ground floor unit and that then second applicant had moved out. The Tribunal raised that inconsistency with the first applicant.

10. The Tribunal was not satisfied that the first applicant and sponsor share a spousal relationship.

11. The Tribunal found the first applicant and the sponsor had provided inconsistent evidence about their circumstances, including their financial circumstances, the support they provide the second applicant and their living conditions and about who lived with them. The Tribunal found these inconsistencies left the Tribunal unsatisfied that the first applicant and the sponsor share a spousal relationship. The Tribunal was not satisfied the applicant and the sponsor are spousal partners.

12. The Tribunal was not satisfied the first applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

13. The Tribunal was not satisfied that the relationship is a genuine continuing relationship and that the first applicant and the sponsor lived together, or not separately and apart on a permanent basis.

14. The Tribunal found it was not satisfied that the applicants met the requirements under s 5F(2) of the Act and found the parties did not meet the requirements under cl 820.211(2) and cl 820.221 of the Regulations and, in those circumstances, affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 1 August 2018. On 24 August 2018, a Registrar of the Court made orders giving the applicants an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

2. The Court file identifies that the Court book was electronically filed a week late on 15 November 2018. On 19 November 2018, the Court made orders extending time in respect of the filing of the Court book and also provided a further opportunity to the applicants to file an amended application, affidavit evidence and submissions and no such documents were filed.

3. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing and the first applicant confirmed she understood the nature of the hearing as explained by the Court.

4. From the bar table, the first applicant maintained that the decision was unfair and that the Tribunal had not properly considered the evidence adduced by the applicants and the sponsor. The Tribunal’s reasons reflect orthodox and detailed analysis of the evidence advanced on behalf of the applicants and the sponsor. The Tribunal’s reasons, on their face, reflect a logical and rational basis for the adverse findings that were open for the reasons given by the Tribunal as summarised above.

5. The first applicant disagreed with the assertion of inconsistencies and asserted that the evidence was consistent. The topics upon which the Tribunal identified inconsistencies are, on their face, actual and material inconsistencies and the assertion that there was no such inconsistency is, in substance, an invitation for this Court to engage in impermissible merits review.

6. The applicant from the bar table asserted that there were questions that had not been properly interpreted. No evidence has been put on by the applicant in that regard. When asked by the Court to identify the topics in respect of which there was an interpretation error, the first topic the applicant identified was that the second applicant went to a particular school, and the name of the school was wrongly interpreted. There is no reference to the name of the school as being a matter of inconsistency in relation to the adverse credibility findings by the Tribunal.

7. The next issue in respect of which the first applicant asserted that there was an interpretation error was one in relation to the living arrangements in respect of the ground floor. The inconsistency identified by the Tribunal was by reference to the first applicant and the sponsor and the second applicant living in a two bedroom detached granny flat at the back of a house. The subject matter of the alleged interpretation error is not the subject of any reasoning by the Tribunal that reflects any potential material interpretation error in the course of the review. The applicants had two opportunities to put on evidence in support of any assertion that there was a problem with the interpreter. No such evidence has been put on.

8. The first applicant’s submissions from the bar table otherwise invite the Court to engage in impermissible merits review. Nothing said by the first applicant at the bar table identified any jurisdictional error.

9. In submissions in reply, the first applicant asserted that the Court book had been served late and because of that her solicitor was unable to prepare the case and that she wanted an adjournment and that she had approached other solicitors who said that they may help her in January or February next year. No earlier notice of an adjournment request had been provided. It is apparent that the ECF Court book was available from 15 November 2018 and that there were consent orders in relation to the one week extension in respect of the provision of that Court book.

10. When the first applicant was asked by the Court at commencement of the hearing whether the first applicant had seen the Court book, the first applicant said no. It is clear from the first applicant’s submissions that the first applicant was well alive to the existence of the Court book, and the first applicant sought to assert that it was the Department’s fault in relation to the late service of the Court book and that was the reason why she should now have an adjournment.

11. The Court is not satisfied that there has been any proper basis identified in the circumstance of the present case to warrant an adjournment. Time was extended by consent for one week for the service of the Court book. The Court book has been available for more than a month to the first applicant and any legal representative if the first applicant was able to obtain other legal representation. The Court notes that the notice of intention to withdraw lawyer was served on 3 December 2018. The Court is satisfied that if the first applicant was able to obtain representation, the first applicant would have had representation today.

12. Further, the Court is satisfied that if there was a lawyer willing to act, the first applicant would have adduced proper evidence in support of that proposition if it were the case. The Court is not satisfied that the first applicant would be able to obtain representation if an adjournment was granted. Further, the Court takes into account the weakness of the grounds identified in the application, and in the circumstances, for the reasons that follow, is not satisfied that there would be any utility in granting an adjournment because the grounds identified lack any real prospect of success.

13. The Court notes that no earlier notice of an adjournment was given to the first respondent and that the first respondent opposed the adjournment. The Court is not satisfied that an adjournment was warranted in the interests of administration of justice.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal failed to comply with the statutory requirements of the "exhaustive statement of the natural justice hearing rule".

   Particulars

   (a) The Tribunal errored in provide clear particulars to the applicant of the natures and evidence of the information that it and the delegate relied on in finding the sponsor with the formal partner's relationship was a business arrangement.

   (b) The Tribunal has not provided any particulars nor independent evidences as well as its own reasoning in finding that the applicant and sponsor may entered into a contrived relationship

Ground 1(a)

1. In relation to ground 1(a), no transcript has been tendered. On the face of the Tribunal’s reasons, the Tribunal explicitly referred to compliance with the statutory requirements under s 359AA of the Act in respect of the information identified by the Tribunal. The Court notes that is also consistent with a notation on the hearing record in respect of the time provided for response giving explicit reference to compliance with s 359AA of the Act.

2. Notwithstanding the assertion to the contrary, in ground 1(a), on the face of the material before the Court, the Tribunal complied with its statutory obligations under s 359AA of the Act in respect of information identified by the Tribunal in its reasons. Accordingly, no jurisdictional error is made out by ground 1(a).

Ground 1(b)

1. Ground 1(b) does not identify any information enlivening an obligation under s 359A of the Act. Ground 1(b) appears to identify the inconsistencies and adverse credibility findings as matters that should have given rise to steps under s 359A or s 359AA of the Act. That proposition is misplaced. The Tribunal is not required to raise the issue of inconsistencies under s 359A of the Act.

2. Further, it is apparent from the Tribunal’s reasons that the Tribunal did raise the issue of the credibility of the first applicant and the sponsor in the course of the hearing and did raise the Tribunal’s concerns in respect of the issues upon which the adverse credibility findings were made. No jurisdictional error is made out by ground 1(b).

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  16 January 2019