ZHOU v Minister for Immigration
[2015] FCCA 668
•12 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHOU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 668 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Regulations, reg.2.03A(3) |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 |
| Applicant: | EN ZHOU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 385 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 12 March 2015 |
| Date of Last Submission: | 12 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms Carr DLA Piper |
ORDERS
The proceedings be summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $780.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 385 of 2015
| EN ZHOU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal on 2 February 2015 affirming a decision not to grant the applicant a Partner (Temporary) (class UK) visa. The application identifies the Court may hear and determine interlocutory or final issues, or may give directions for the future conduct of the proceedings on the return date.
In this case, the Court, having looked at the application and the Tribunal decision, raised with the applicant that the application did not identify on its face any arguable jurisdictional error and that the Court was minded to consider exercising its powers of summary disposal of the proceedings.
The grounds of the application are set out as follows:
1. The decision of the Migration review Tribunal was an improper exercise of the power conferred by law.
2. Natural justice was denied due to apprehended bias by the Tribunal.
3. Procedural fairness was denied by the Tribunal due to a failure to consider the relevant evidence.
The applicant said that the Tribunal just took into account one matter as to why he did not go back to China. The Tribunal gave detailed reasons in relation to its decision in coming to the conclusion that there was not a genuine continuing de facto relationship at the time of the application.
In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
The Tribunal identified the requirements of reg.2.03A(3), which requires that a de facto relationship exists for at least 12 months prior to the making of the visa application. The Tribunal clearly took into account the correct information provided by the applicant and his sponsor partner’s previous marriage. Notwithstanding the assertions of the applicant which were repeated today that he did not know, the applicant’s sponsor agreed in evidence that they both knew at the time of the application that she had been married.
There is no substance in any of the three grounds identified. It is clear that the Tribunal conducted the review according to the statutory regime and that there was no denial of procedural fairness to the applicant in the conducting of the review by failing to consider relevant evidence. It was a matter for the Tribunal to determine what evidence it accepted, and the findings made by the Tribunal were clearly open on the material before the Tribunal. The findings cannot be said to lack an evident and intelligible justification.
There is no substance in suggesting that the applicant was denied natural justice and the assertion of an allegation of apprehended bias has no substance. Further, the assertion of allegation of apprehended bias is clearly inconsistent with the reasons of the Tribunal that disclose an impartial and independent mind was brought to bear in respect of the claims of the applicant. The assertions by the applicant in his affidavit do not advance any proper basis for concluding that the Tribunal did other than bring to bear an independent and impartial mind to the proper exercise of its statutory powers of review. In these circumstances, the grounds of the application are clearly doomed to failure.
The applicant applied for the grant of a Partner (Temporary) (Class UK) visa on 26 June 2012, which the delegate refused on 1 November 2013. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because he had not lodged his application within the prescribed period and there was no compelling circumstances to waive this requirement. The Tribunal noted that the applicant applied for a review on 13 November 2013, and appeared before the Tribunal on 29 January 2015 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s sponsor, and the Tribunal hearing was conducted with the assistance of an interpreter, as well as the applicant being represented by a review registered migration agent. The Tribunal identified that the applicant arrived in Australia on 19 April 2007 as the holder of a Student (Subclass 571) visa, which was cancelled on 12 February 2008. The applicant applied to a different Tribunal, which affirmed that decision to cancel that visa on 25 February 2009.
The applicant then lodged an application for a protection visa on 9 April 2009, which was refused by the Department on 21 May 2009. The applicant then applied to the Tribunal again differently constituted for a review of the decision and, on 12 August 2009, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant’s sponsor is approximately 10 years older than the applicant, and she arrived in Australia on a student visa on 4 March 2002. Her Subclass 573 Student visa was extended, and the visa ceased on 15 March 2004. She lodged an application for a spouse visa and was granted a Subclass 801 permanent residence visa on 22 May 2006. On her Application to Sponsor a Partner form 40SP, she stated, at question 40, she had never been sponsored to Australia as a spouse or de facto partner. On the visa applicant’s application form 40SP he stated that his sponsor had never previously been married or in a de facto relationship. It is clear from the findings of the Tribunal that the sponsor had been previously married, and it is clear from the evidence that the sponsor gave, notwithstanding the denials by the applicant, that both she and the applicant knew that fact at the time of the application.
The Tribunal noted that the delegate had expressed a concern that there was no evidence that the applicant and sponsor had been in a de facto relationship for a period of 12 months prior to the application being lodged. Materially one of the first matters that the Tribunal addressed was the issue of the provision of the false information on the application forms relating to the applicant’s spouse visa marital status. The Tribunal noted that the applicant had been arrested by the police for fraud and held in Burwood Police Station and transferred to Villawood Detention Centre in June 2012.
The Tribunal noted that he initially stated he did not say that at the time of his application he did not know his sponsor had previously been married and sponsored for a permanent visa. The Tribunal noted the applicant’s evidence was confused about exactly when they met and when the sponsor told him about her previous marriage. The Tribunal noted that the applicant did not have an explanation for why he did not advise his migration agent lawyer of the correct answer in respect of his sponsor’s previous marital status.
The Tribunal turned to consider whether there were compelling circumstances that existed at the time of the application with the applicant. The Tribunal assessed the applicant’s evidence in relation to assertions concerning the sponsor. The Tribunal noted that the applicant had stated he would not go back to China to lodge his partner application if the Tribunal does not find in his favour. The Tribunal carefully identified the applicant’s sponsor’s evidence, and in particular, that both she and the applicant knew of her marriage, at the time of the application.
The Tribunal asked the applicant’s sponsor whether there was any reason why the applicant could not have returned to China to lodge his application, and she initially said that she was taking medicine for depression, but she then acknowledged she was not taking medicine for depression at the time of the application. The applicant’s sponsor said the applicant does not provide specific care to her, as she does not often have symptoms, and that there is nothing to be done except for her to take medication.
The Tribunal identified the evidence of the applicant’s sponsor in relation of miscarriage. The Tribunal noted that the question to be determined was whether the parties were in a genuine, continuing de facto relationship at the time of the application, and if so, whether there were compelling reasons that existed at the time of the application to waive the requirement that the applicant had to be the holder of a substantive visa, or to have made his application within 28 days of his last substantive visa ceasing.
The Tribunal found:
32. …the Tribunal is not satisfied that the applicant and his sponsor were living together in a de facto relationship prior to the applicant’s arrest and detention in Villawood in June 2012 or that they pooled financial resources or had any joint assets or liabilities or had a joint household prior to December 2012. …
The Tribunal found that there is no supporting evidence that the applicant and his sponsor had a mutual commitment to a shared life with each other, to the exclusion of others, prior to December 2012.
The Tribunal found that the applicant and his sponsor did not have a de facto relationship prior to the lodgement of the visa application in June 2012. The Tribunal noted the requirements of regulation 2.03(A) – that the de facto relationship had existed for at least 12 months prior to the making of the visa application – and the Tribunal found that the applicant did not meet the requirements of regulation 2.03(A)(3). The Tribunal considered whether there were compelling reasons for not applying the criteria under clause 820.211(2)(d).
The Tribunal noted that it had found that the applicant did not meet the relevant criterion Schedule 3A and does not meet the 12 month relationship requirement. After identifying the evidence, including the fact that the applicant’s sponsor was not pregnant at the time of the application, the Tribunal found that it is not satisfied there are compelling reasons, at the time of the application, to waive the schedule 3 requirement that the applicant leave Australia and apply offshore for a partner visa.
The Tribunal found, as was open to it, that there was not a genuine, continuing de facto relationship at the time of the application. Nor were there compelling circumstances, at the time of the application, to waive the schedule 3 requirement. Accordingly, the Tribunal found the applicant did not meet clause 820.211(2)(a) and (d)(ii), and therefore does not satisfy the criteria for a grant of a visa, and affirmed the delegate’s decision. The findings of the Tribunal were clearly open. The grounds identified by the applicant are plainly doomed to failure. I am clearly satisfied that the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 March 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Natural Justice
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Judicial Review
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Procedural Fairness
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