Zhang v Minister for Immigration

[2020] FCCA 2529

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2529

Catchwords:
MIGRATION – Partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicant procedural fairness and failed to consider matters relevant to its review.

Legislation:

Migration Act 1958, ss.5F, 351, 359, 361, 474

Migration Regulations 1994 (Cth), reg.1.20J, cls.820.211, 820.221 to sch. 2

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Applicant: JIANRI ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 961 of 2017 

Judgment of: Judge Cameron

Hearing date: 31 August 2020

Date of Last Submission: 31 August 2020

Delivered at: Sydney

Delivered on: 11 September 2020

REPRESENTATION

Counsel for the Applicant Mr P. Cutler

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 961 of 2017

JIANRI ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of China.  On 27 November 2015 he lodged an application for a Partner (Temporary) (Class UK) visa with what is now the Department of Home Affairs (“Department”). The applicant’s application was refused by a delegate of the first respondent (“Minister”) on 9 February 2016. The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

LEGISLATION

1. At all material times s.5F of the Act provided relevantly as follows:

   5F     Spouse

   (1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   …

2. Regulation 1.20J relevantly provides:

   1.20J  Limitation on approval of sponsorships—spouse, partner, prospective marriage and interdependency visas

   (1AA)    This regulation applies in relation to an application for:

   …

   (f)      a Partner (Temporary) (Class UK) visa.

   (1)Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:

   (a)not more than 1 other person has been granted a relevant permission as:

   (i)     the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; …

   …

   (b)if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)—not less than 5 years has passed since the date of making the application for that relevant permission; and

   …

   (1A)  In subregulation (1):

   relevant permission means:

   …

   (b)in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997—permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.

   (2)Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

3. At all material times cl.820.211(2) and cl.820.221(4) of sch.2 to the Regulations provided relevantly as follows:

   820.21—Criteria to be satisfied at time of application

   820.211

   …

   (2)    An applicant meets the requirements of this subclause if:

   (a)the applicant is the spouse or de facto partner of a person who:

   (i)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   …

   (c)the applicant is sponsored:

   (i)     if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

   …

   820.221

   …

   (4)If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:

   (a)the sponsorship has been approved by the Minister and is still in force; and

   …

BACKGROUND FACTS

1. The facts alleged in support of the applicant’s application for a Partner (Temporary) (Class UK) visa were summarised by the Minister in his written submissions as follows:

   7.The sponsor had previously sponsored the partner visa application of another person (the previous partner), in an application lodged on 28 November 2012. The previous partner was granted a Subclass 820 visa on 23 April 2013.  This was not in dispute and was conceded by the sponsor in a letter to the Department dated 17 December 2015. The sponsor provided copies of correspondence with respect to her withdrawal of sponsorship of her previous partner.  The sponsor claimed that her previous partner had been “using” her to obtain a visa and that she had withdrawn her sponsorship when she discovered this. 

   …

   12.At the hearing, the applicant accepted that the sponsor had previously sponsored a person as a de facto partner on a combined Partner visa application which was lodged on 28 November 2012. The sponsor confirmed that the Subclass 820 visa was granted on 23 April 2013. The applicant conceded that reg 1.20J(1)(b) could not be met by the sponsor…

   (a)The sponsor was depressed and traumatised following her previous relationship. The sponsor suffered from a medical condition ‘Grave’s thyroiditis’ for which she received radioiodine treatment in February 2016.  During this treatment the sponsor discovered that she was pregnant, and she had the pregnancy terminated.

   (b)The sponsor had been attending psychological therapy since 3 August 2016 for grief and depression related to her medical condition and the termination of her pregnancy. Various medical reports recorded the sponsor as suffering from depression, anxiety, poor sleep and vertigo.

   (c)The applicant provided emotional support to the sponsor and it would seriously impact the sponsor if the visa were not granted.

   (d)The [applicant] earned an income from his share in a vegetable retail business he owned with his sister, and he contributed $2,000 to the sponsor.  The families of the sponsor and the applicant contributed an average of $4,000 to $5,000 per month to household expenses.

   (References omitted)

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it the Tribunal affirmed the delegate’s decision. The Tribunal’s findings and reasons were relevantly summarised by the Minister in his written submissions in the following terms which I also adopt:

   (13)On 2 March 2017, the Tribunal affirmed the decision not to grant the applicant a Partner visa.

   (14)The Tribunal found that the sponsor did not meet reg 1.20J(1)(b) as she had previously sponsored a person as a de facto partner on a combined partner visa application and less than five years had passed between the date of that visa application and the date on which the present visa application was lodged.

   (15)The Tribunal went on to consider whether there were compelling circumstances affecting the sponsor for the purposes of reg 1.20J(2).

   (16)The Tribunal had regard to the examples of compelling circumstances provided in Departmental policy and found that none of those circumstances applied in the present case.

   (17)The Tribunal accepted that the sponsor had suffered hyperthyroidism, undergone a termination of her pregnancy, and that she suffered from related psychological conditions for which she received weekly counselling.  The Tribunal placed weight on the medical reports which indicated an improvement in the applicant’s mental health, and the evidence of the applicant that she was now free to attempt to conceive again, and that she and the applicant undertook activities together such as shopping and meeting with friends.

   (18)The Tribunal found that although the sponsor had resigned from her employment in June 2016, she had the training and work experience which would allow her to derive an independent income, noting that she could drive and had no children or others for whom she had claimed any responsibility for care.  The Tribunal found that the applicant did not work and that his business could continue to operate in his absence, and that the financial resources available to the sponsor from the applicant’s business would still be derived for the couple’s benefit.

   (19)The Tribunal gave consideration to the sponsor’s account of discovering that her previous partner had been using her to obtain a visa and that he had been unfaithful to her.

   (20)The Tribunal was not satisfied that the relationship between the applicant and sponsor was “longstanding”, on the basis of their evidence that they first met in 2013 and committed to a shared life together on 10 October 2015 when they started living together and subsequently married on 12 November 2015. The Tribunal accepted the parties had “booked everything” for a larger formal celebration of their marriage on 18 August 2017 however noted this was done “last month” being a time immediately before the pending outcome of this review.

   (21)The Tribunal found that the circumstances summarised above were not sufficiently compelling circumstances to waive the sponsorship limitation requirement.

   (22)The Tribunal found that the applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations and affirmed the decision under review.

   (References omitted)

THE PROCEEDING IN THIS COURT

1. In the application commencing this proceeding the applicant alleged:

   1.The first and second respondents have not taken all the relevant information and the whole marriage background and history of the sponsor into consideration to make the decision of the application.

2. The other grounds pleaded in the application were abandoned and in their place particulars were given of ground 1:

   (a)By failing to hear evidence from two witnesses who were present at the AAT hearing, the Member has not  provided the Applicant with procedural fairness;

   (b)the AAT has not given proper genuine and realistic consideration to the Applicant’s claim that she is an “innocent sponsor” and was deceived by her former spouse: and

   (c)the AAT has not given proper genuine and realistic consideration to the Applicant’s claim that her miscarriages and associated anxiety and stress were a compelling circumstance.

CONSIDERATION

Particular 1(a) – denial of procedural fairness.

1. The transcript of the Tribunal hearing discloses that present at the Tribunal’s hearing, in addition to the applicant and his sponsoring wife, were two men who had previously provided the Department with statutory declarations attesting to the genuineness of the couple’s spousal relationship.  The presiding member is recorded as having described the men as “two other essential witnesses at the back of the room”, however, the men were not called to give evidence.  The applicant alleged that this amounted to a denial of procedural fairness.

2. Section 361 of the Act provides that an applicant may advise the Tribunal that he or she wants the Tribunal to call a person as a witness to give oral evidence. Under that section, the Tribunal is required to have regard to such a request but is not required to comply with it. The applicant did not adduce evidence of having made such a request of the Tribunal in relation to the two men, or anyone else for that matter, and the material in the Court Book which was ex.1 did not record such a request having been made.

3. That being so, whether either of the men was called to give evidence was a wholly discretionary matter for the Tribunal: s.359(2). Relevantly in that connection, even though they were twice asked whether there was anything further they wanted to say, the transcript of the Tribunal’s hearing does not suggest that the applicant or his wife asked at the hearing that the two men be called to give evidence. That is to say the Tribunal did not exercise a discretion to refuse a request that they be called. Further, the evidence which the two men had given in their statutory declarations was limited to the genuineness of the applicant and his sponsor wife’s spousal relationship, which was not in issue before the Tribunal. In those circumstances if, as it seems, the Tribunal did not turn its mind to calling the two men to give evidence, I would not conclude that that failure was unreasonable: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at 492 [70], 494 [82]. I would therefore not find that the Tribunal’s decision was affected by jurisdictional error on that account.

4. For those reasons particular 1(a) does not disclose a basis on which the Tribunal’s decision should be set aside.

Particular 1(b) – failure to consider claim to be innocent sponsor

1. The success of the applicant’s application for review by the Tribunal relied on him satisfying it that there were “compelling circumstances” affecting the sponsor, his wife.  The parties were agreed that in the course of its consideration of that issue the Tribunal referred to the Department’s Procedures Advice Manual (“PAM”) and, relevantly, to the following passage in the PAM:

   Under policy, compelling circumstances affecting the interests of the sponsor include instances where:

   •   the applicant and their sponsor have a dependent child who is dependent on each of them or

   •   the death of the previous partner or

   •   the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or

   •   the new relationship is longstanding.

   …

2. The PAM went on to give an example in the following terms:

   There have recently been a number of claims relating to so called “innocent sponsors”.  These sponsors claim that their intentions towards the original relationship were genuine, that they were blameless in the failure of the relationship and that because of this, the waiver should be exercised.  In some of these cases, the person they sponsored/nominated has left Australia and no immigration advantage was gained.  The sponsors claim that they would be unreasonably disadvantaged if the waiver was not exercised as their new relationship is clearly genuine.

   It is open to decision makers to decide whether this situation would meet the criteria of compelling circumstances.  However, this would depend on the individual circumstances of each case such as whether it is possible to establish the bona fides of the original relationship or whether the first sponsorship was “careless” (sponsored with the expectation that if things didn't work out, they would be free to try again).  Although the first relationship may not necessarily be bogus, this scenario may still represent a misuse of the migration provisions.

3. The applicant submitted that the Tribunal had treated the four dot-matters matters set out in the first of those quotations as a checklist and had failed to give proper consideration to the circumstances set out in the example, which was particularly relevant to his wife’s position.  However, the Tribunal’s reasons, as summarised earlier, make it clear that it considered a number of matters relevant to the compelling circumstances question and not just the four dot points from the PAM.  That being so, the argument in connection with this particular of the remaining allegation is, in substance, an invitation to merits review, in which the Court cannot engage.

Particular 1(c) – failure to consider the sponsor’s health

1. In paras. 17 and 18 of its decision record the Tribunal discussed and considered the sponsor’s health issues.  The applicant contended that the Tribunal failed to consider the termination procedure undergone by the applicant’s wife in the required fashion or perhaps at all.  Those concerns are misplaced. 

2. The Tribunal expressly referred to the procedure and to the mental health support which the applicant’s wife had been receiving consequentially upon it.  To describe the procedure in question as miscarriages and to suggest that the Tribunal’s characterisation of the procedure as a termination manifested error serves, by a focus on nomenclature, to distract from the reality of what the applicant’s wife had to undertake and undergo, of which the Tribunal was plainly aware and to which it turned its mind.  Most relevantly for its decision, in para.18 of its reasons it referred to contemporary evidence of the physical and mental health of the applicant’s wife.

3. For those reasons, the allegations advanced in this particular is not made out.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

3. As a final note, it should be recorded that the applicant’s written submissions stated that the applicant and his wife are now parents. This may be a case suitable for the exercise of ministerial discretion under s.351 of the Act.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 11 September 2020