ZHANG v Minister for Immigration

[2017] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2739

Catchwords:
MIGRATION – Partner visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by bias – whether the Tribunal erred by taking into account irrelevant considerations – whether the Tribunal had bases for its findings – whether the Tribunal erred by failing to consider relevant evidence – whether the Tribunal erred by failing to consider errors in interpretation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140A, 425, div.3A of pt.2

Migration Regulations 1994 (Cth), cls.820.211, 820.221, 820.221A, div.1.4B, regs.1.20KA, 2.56

Cases cited:

BZAID v Minister for Immigration & Border Protection (2016) 242 FCR 310; [2016] FCA 508

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263

Applicant: YOUHENG ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2123 of 2016

Judgment of: Judge Smith

Hearing date: 4 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Sydney

Delivered on: 30 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2123 of 2016

YOUHENG ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China. In October 2011 he and his wife of 32 years came to Australia to visit their daughter who resides here. On 15 September 2012, the applicant returned to China while his wife remained in Australia. The applicant’s wife lodged an application for a Subclass 143 (Contributory Parent) visa (CP visa) which was granted on 4 June 2014.

2. The applicant did not apply for a visa at the same time as his wife; however, he applied for a Subclass 820 Partner (Temporary) (Class UK) visa (Partner visa) on 18 September 2014. The criteria for the grant of that visa were contained in cl.820 in sch.2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 820.211(2) of the Regulations relevantly required:

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

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

   (ii)is not prohibited by subclause (2B) from being a sponsoring partner; 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

   (ii)if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse who:

   (A)     has turned 18; and

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

   …

3. The applicant was sponsored by his wife for the purposes of his visa application.

4. It was also a criterion for the grant of the visa, that the sponsorship by the wife was approved by the Minister and still in force at the time of the decision: cls.820.221(4) and 820.221A. There were no specific provisions relating to the criteria for the approval of a sponsorship in respect of this class of visa[1]; however, there were provisions restricting the circumstances in which the required approval could be given. Those provisions were found in div.1.4B of the Regulations including, of particular relevance to this case, reg.1.20KA. That regulation bore the heading “Limitation on approval of sponsorship-partner (provisional or temporary) or prospective marriage (temporary) visas”.

   [1] The detailed provisions in div.3A of pt.2 of the Migration Act 1958 (Cth) (Act) did not apply: s.140A of the Act and reg.2.56 of the Regulations.

5. Regulation 1.20KA relevantly provided:

   (1)This regulation applies if:

   (a)a person is granted a specified visa on or after 1 July 2009; and

   (b)the person seeks approval to sponsor the relevant applicant on or after 1 July 2009; and

   (c)the person was the spouse or de facto partner of the relevant applicant on or before the day the specified visa was granted to the person.

   (2)The Minister must not approve sponsorship by the person of the relevant applicant within 5 years after the day when the person was granted the specified visa.

   (3)Despite subregulation (2), the Minister may approve sponsorship by the person of the relevant applicant:

   (a)if the relevant applicant had compelling reasons, other than reasons related to his or her financial circumstances, for not applying for a specified visa at the same time as the person applied for his or her specified visa; or

   …

6. A “relevant applicant” for the purposes of this regulation includes an applicant for a partner visa: reg.1.20KA(4). A “specified visa” includes a CP visa.

7. As the applicant’s sponsor was granted her CP visa after 1 July 2009 and was in a spousal relationship before that date, reg.1.20KA applied and the wife could not be approved as the sponsor unless the applicant had compelling reasons, other than reasons related to his or her financial circumstances, for not applying for the CP visa at the same time as his wife.

8. On 16 December 2014, an officer of the Department of Immigration and Border Protection (Department) wrote to the applicant informing him of the effect of reg.1.20KA and asking that he provide evidence to support any waiver of the sponsorship limitation in it. The applicant’s agent responded by email on 27 January 2015, requesting a waiver of the restriction.

9. The circumstances relied on were that the applicant had returned to China in September 2012 as his mother was diagnosed with cancer and needed an operation and chemotherapy treatment. The fact that the applicant was the eldest son and a retired university professor meant that there was both a cultural and practical imperative for the applicant to look after his mother at that time. In addition, the applicant’s daughter in Australia needed long term support and his wife applied for a visa for that reason. Subsequently, the applicant’s wife was diagnosed with a serious depressive illness and required her husband’s ongoing care.

10. On 15 May 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The delegate found that reg.1.20KA applied and that there were no compelling reasons as to why the applicant had not applied for a CP visa at the same time as his wife.

11. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. He engaged a new migration agent for the purposes of the review.

12. On 6 and 7 June 2016, the applicant’s new agent sent the Tribunal submissions and further material in support of the contention that there were compelling reasons for the applicant not applying for the CP visa at the same time as his wife. On 10 June 2016, the applicant, his wife and their daughter attended a hearing conducted by the Tribunal. The applicant’s agent also attended.

13. On 15 July 2016, the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal accepted that the applicant’s mother was diagnosed with cancer in September 2012, that she underwent surgery in November 2012 and that the applicant, as her eldest son, felt some obligation to go to China to be with her. However, for the following reasons, it did not accept “that the applicant was compelled to go to China when he did such that he could not apply” for a CP visa at the same time as his wife’s application.

2. First, the Tribunal did not accept the claim that the applicant and his wife had planned to live in separate countries for an indefinite period. Rather, it formed the view that they had planned to separate only temporarily, and that the applicant would return to Australia soon after the CP visa application was lodged.

3. Secondly, the Tribunal found that the applicant’s sister was able to look after their mother.

4. The Tribunal was not satisfied that the depressive illness of the applicant’s wife was a circumstance relevant at the time of the CP visa application because the wife had first been diagnosed in August 2014.

5. The Tribunal did not accept that the applicant was responsible for making decisions about his mother’s treatment in light of the fact that his brother had decided not to inform him of her illness straight away.

6. On the basis of those findings, the Tribunal found that there were no compelling reasons, other than reasons relating to financial circumstances, for the applicant not applying for a CP visa at the same time as his wife. For that reason, it was not satisfied that the conditions in sub-reg.1.20KA(3)(a) were met. As sub-reg.1.20KA(3)(b) did not apply, the Tribunal found that reg.1.20KA(2) prevented the sponsorship of the applicant by his wife being approved and, as a consequence, that the criterion in sub-cl.820.221(2)(c) of the Regulations were not met.

Consideration

1. The application and several of the grounds in it are addressed to both the decision of the Tribunal as well as that of the delegate. The Court only has jurisdiction in relation to the Tribunal’s decision. For that reason, it is not necessary to deal with any contention concerning the delegate’s decision.

2. There are nine grounds in the application. In February 2017, the applicant filed a letter in which he addressed a number of these grounds and made a number of other submissions that went only to the merits of the Tribunal’s decision. That letter is referred to in these reasons as the applicant’s submissions.

First ground

1. This ground is that the Tribunal did not apply reg.1.20KA accurately and “put too much personal opinions” into the case. Read together with the applicant’s submissions (see page 2), this ground appears to raise an allegation of actual bias in the form of prejudgment. In his submissions, the applicant suggests that there was bias because “the member was sticking to her own theory rather than the reality presented in the case.”

2. In order to establish bias, the applicant must show that the Tribunal had so prejudged the matter that it was unwilling or unable to change its mind regardless of the evidence: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]; [2001] HCA 17 (Gleeson CJ and Gummow J). That is a difficult task. It is not fulfilled simply by pointing to the fact that the Tribunal made findings unfavourable to the applicant. However, that is all that the applicant seems to do in support of this ground. His reference to the “reality presented in the case” is no more than a submission that his claims ought to have been accepted. Neither that, nor anything else in the material before the Court, comes close to establishing actual bias.

3. The applicant does not suggest that there was a reasonable apprehension of bias. If he did, his total reliance on the findings of the Tribunal would warrant the rejection of the ground: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33]; [2011] HCA 48.

Ground two

1. This ground is that the Tribunal had no basis for its finding (at [39] of its reasons) that the applicant and his wife intended to live in different countries for an indefinite period. The ground is baseless. It was logical for the Tribunal to arrive at its conclusion on the basis that the applicant and his wife had been married for 37 years and were retired. In the absence of any suggestion either that the relationship had ended, or that living apart had been an ordinary part of their long relationship, it was an obvious and open inference that the applicant and his wife would wish to continue living together as they had for at least 37 years. This ground is rejected.

Ground three

1. This ground concerns [40] of the Tribunal’s decision and consisted of a number of reasons for which the findings there were wrong. As such, the ground rises no higher than an attack on the merits of the Tribunal’s decision and does not elucidate any jurisdictional error. For that reason, the ground must be rejected.

Ground four

1. This ground takes issue with [42] of the Tribunal’s decision. In that paragraph, the Tribunal addressed the claim that the applicant’s wife had a depressive illness and found that it did not constitute a compelling reason within the meaning of reg.1.20KA(3) because it did not arise at the time of the wife’s application for a CP visa. The applicant argues that this illness was never put forward as a compelling reason and so the Tribunal should not have considered it in that context.

2. The fact that the applicant did not put forward a particular factual matter to support the claim to satisfy a criterion for the grant of a visa does not, of itself, mean that the Tribunal is prohibited from considering that factual matter. The Tribunal may be required to consider claims not expressly made by an applicant: see, for example,     NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263. Here, even if it is to be accepted that the applicant did not rely upon his wife’s illness to show that there were compelling grounds, the Tribunal in exercising its jurisdiction was not affected by its consideration of that matter. Having considered the fact of the illness of the applicant’s wife, the Tribunal simply put it to one side as not affecting its consideration of the relevant criteria. The Tribunal’s consideration of this fact only shows that it was exercising an abundance of caution in determining the issues before it. The ground is rejected.

Ground five

1. In this ground the applicant takes issue with the Tribunal’s finding, at [43] of its reasons, that the delay between the diagnosis of his mother and the applicant’s departure from Australia was inconsistent with an expectation that the applicant should be responsible for decision making about his mother’s treatment. The applicant only complains that his explanation for the delay was reasonable. That is a matter of opinion, rather than one of law, and one about which reasonable minds may differ. For that reason, the ground is an attack on the merits and is rejected.

Ground six

1. This ground is that the Tribunal should not have found, at [41] of its reasons, that the applicant’s written claims may be somewhat embellished because the basis for that statement, the relationship between the applicant’s daughter and his son-in-law, was irrelevant to the question of the existence of compelling reasons. This ground is based upon a misunderstanding of the Tribunal’s reasons.

2. The Tribunal did not suggest that the relationship between the applicant’s daughter and his son-in-law was relevant to the question of whether there were compelling reasons. The Tribunal addressed that relationship in the broader context of the credibility of the applicant’s claims. The question of credibility is not confined to matters that are of adjectival relevance to a particular criterion. Relevance in this context arises at a more general level and can affect the determination of what factual matters the Tribunal accepts and which ones it rejects. The ground is rejected.

Ground seven

1. In this ground the applicant suggests that the Tribunal should have taken into account the fact that, in September 2012, his tourist visa was subject to condition 8503 (no further stay). There is no evidence that that was the case. In any event, the applicant never mentioned the existence of such a condition in support of his contention that there were compelling reasons for not having applied for a CP visa at the same time as his wife. Given that both the applicant and his wife were in Australia in 2012 on tourist visas and his wife was able to apply for a CP visa, the existence of a no further stay condition was not an obvious matter that arose on the material before the Tribunal. In light of that, the Tribunal’s failure to consider the existence and effect of such a condition did not amount to jurisdictional error.

Ground eight

1. In this ground the applicant contends that the Tribunal erred by ignoring several omissions made by the interpreter which were raised by the applicant and his daughter at the Tribunal hearing. The Tribunal referred to an issue concerning interpretation at [28] of its reasons:

   The applicant’s daughter said her father has a hearing problem and she was worried that the interpreter had not interpreted a word properly. She raised a concern she had with the interpretation prior to the commencement of the hearing, when the hearing officer was preparing the parties for the hearing. She indicated there was a word that had been misinterpreted and that the interpreter had not interpreted everything that was said. The Tribunal noted that the interpreter is qualified and very experienced in dealing with Tribunal matters. The applicant indicated to the Tribunal that he understood the interpreter. The applicant’s migration agent, who speaks Mandarin, was present during the hearing and did not raise any concerns. Having considered the applicant’s responses to the questions asked, the Tribunal is satisfied the interpreter interpreted correctly and that the applicant has had a fair opportunity to give his oral evidence to the Tribunal.

2. In the applicant’s submissions, the applicant alleges that his evidence was “twisted” and asserts, as an example, that he said “I have a punctuated [sic] eardrum. My hearing ability was affected and I may need the member to repeat things because of this”. The applicant says that this was interpreted as “the applicant had surgery as he hurt his ear as a child”.

3. There are several difficulties with this ground. The first, is that there is no evidence to support the particular factual allegations made by the applicant. The second is that, even if I were to accept the applicant’s factual assertions without evidence, which I do not, those assertions would not establish jurisdictional error.

4. The proper conduct of the hearing to which an applicant is invited under s.425 of the Act, is an essential aspect of the exercise of the Tribunal’s jurisdiction to review the delegate’s decision. For obvious reasons, adequate interpretation to and from the English language is important to that proper conduct. Just what amounts to adequate interpretation, depends upon all of the circumstances of the case. However, it is clear that the quality of interpretation can have an impact upon the duty of the Tribunal to afford a fair hearing.

5. The authorities concerning the quality of interpretation at a hearing conducted by the Tribunal were summarised by Edelman J in BZAID v Minister for Immigration & Border Protection (2016) 242 FCR 310 at [52]-[53]; [2016] FCA 508, where his Honour said:

   52The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:

   (1)interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

   (2)whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

   (3)in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

   (4)where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

   (5)where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

   (6)where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

   (7)if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

   (8)however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

   53The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (at [9]):

   The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   (Emphasis in original)

1. There are a number of important circumstances in this case that lead me to conclude that there was no unfairness in the procedure adopted by the Tribunal at the hearing in connection with the interpretation:

   a)first, there were, at the hearing, two people appearing in the interest of the applicant (his daughter and migration agent) who were able to speak both Mandarin and English and able not only to determine whether there were any inaccuracies in the interpretation but also to correct them;

   b)secondly, on the applicant’s own case, there were no frequent or continuous errors but only one concerning the applicant’s ability to hear;

   c)thirdly, the apparent inadequacy in interpretation relied upon by the applicant, had no direct bearing on any particular claim made by the applicant in support of his application for review; and

   d)fourthly, the applicant does not suggest that the Tribunal overlooked or misunderstood any particular aspect of his evidence.

2. For those reasons this ground is rejected.

Ground nine

1. The applicant argues that the hearing was unfair because the Tribunal failed to take evidence from the sponsor (the applicant’s wife). The applicant did not provide any evidence to support the factual assertion upon which this ground is based.

2. First, at [4] of its reasons, the Tribunal states that it received oral evidence from both his wife and his daughter at the hearing. Secondly, that statement is supported by a hearing record which indicates that both the applicant’s wife and his daughter appeared as witnesses and gave evidence under affirmation. This ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       30 November 2017