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MIGRATION - Review of decision of the Migration Review Tribunal - refusal to grant partner (provisional) (class UF) visa, sub-class 309 - no jurisdictional error - application dismissed.

Leung v Minister for Immigration [2003] FMCA 253 (25 June 2003)

Leung v Minister for Immigration [2003] FMCA 253 (25 June 2003) Last Updated: 1 July 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA LEUNG v MINISTER FOR IMMIGRATION [2003] FMCA 253 MIGRATION - Review of decision of the Migration Review Tribunal - refusal to grant partner (provisional) (class UF) visa, sub-class 309 - no jurisdictional error - application dismissed. Migration Act 1958 Migration Regulations 1994 Judiciary Act 1903 (Cth) Nassouh v The Minister for Immigration and Multicultural Affairs (2000) FCA 788 Plaintiff S157/2002 v The Commonwealth of Australia (2003) HCA 2 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Applicant: KOON PING LEUNG Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: MZ1179 of 2002 Delivered on: 25 June 2003 Delivered at: Melbourne Hearing date: 30 April 2003 Judgment of: Hartnett FM REPRESENTATION Counsel for the Applicant: Mr Decker Solicitors for the Applicant: Richard Desmond Counsel for the Respondent: Mr Serong Solicitors for the Respondent: Blake Dawson Waldron ORDER (1) The application is dismissed. (2) The applicant to pay the respondent's costs as agreed or in default of agreement as taxed pursuant to the Federal Court Rules . (3) It is certified that pursuant to r 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE MZ1179 of 2002 KOON PING LEUNG Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT 1. The applicant filed his application on 20 November 2002. That application was amended by a document filed on 20 February 2003 and again by further amended application for an order of review filed 24 April 2003. The amended application sought judicial review of a decision of the Migration Review Tribunal (MRT) made on 24 October 2002. The application was made under s.39B of the Judiciary Act 1903 (Cth). The grounds asserted by the applicant are as contained in paragraphs 4A and 4B of the amended application. The applicant also sought to rely upon affidavits filed by him on 20 November 2002 and on 18 March 2003. Insofar as the affidavit of 18 March 2003 seeks to put fresh evidence before this Court that evidence does not form part of the material before me and is not germane to my consideration of this application. The applicant also filed a document entitled "supplementary book of documents" on 6 February 2002. Each of the applicant and respondent filed contentions of fact and law and relied upon same. The respondent filed the Court Book. Each were represented by counsel whom the Court is grateful to for their helpful submissions. History 2. The applicant is the husband of Yu Hong Zhan. The applicant is an Australian citizen obtaining such citizenship on 14 November 1985. Yu Hong Zhan is a national of The People's Republic of China and is aged 35 years. On 9 January 2001 she applied for a partner (provisional) (class UF) visa as the wife of her husband. Her daughter, Run Bin Zhang, now aged five years and not a child of the applicant, was included in the primary application. A delegate of the Minister refused to grant the visa sought on 25 September 2001. 3. The applicant in these proceedings lodged an application with the MRT on 15 November 2001. On 1 October 2002 a hearing was held at which the applicant gave evidence. Other information was provided to the Tribunal by the applicant including emails; statements prepared by the applicant and others; photographs; cards; and financial documents. On 24 October 2002 the MRT affirmed the decision of the delegate not to grant a partner (provisional) (class UF) visa. The Migration Review hearing 4. The MRT noted that the relevant legislation was that contained in regulation 1.15A and sub-class 309 of schedule 2 of the Migration Regulations 1994. The Tribunal referred to policy as contained in the Procedures Advice Manual 3 and noted that the Tribunal was required to have regard to policy and apply it unless there were cogent reasons for departing from it. 5. The Tribunal found at the time of application the visa applicant being the wife of the applicant before me was validly sponsored by the applicant in these proceedings he being an Australian citizen. 6. The Tribunal found at the time of application the visa applicant and her sponsor were married to each other under a marriage that is recognised as valid for the purposes of the Migration Act 1958. At the time of the MRT decision the applicant in the proceedings and his wife were still married to each other. The Tribunal then moved to a consideration of whether the visa applicant was the spouse of the applicant in these proceedings at the time of application and continued to be the spouse of the applicant in these proceedings at the time of decision. Throughout the wife remained in China and the husband for the most part in Australia. 7. The Tribunal referred to the Federal Court decision in Nassouh v The Minister for Immigration and Multicultural Affairs (2000) FCA 788 wherein the Court held that sub-regulation 1.15A(3) set out mandatory considerations. Thus the MRT proceeded on the basis that in forming an opinion as to whether a married relationship existed at the relevant times it had to look to the satisfaction of those matters set out in regulation 1.15A(3). In particular, that regard had to be had to all of the circumstances of the married relationship including (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons' commitment to each other. Regulation 1.15A(5) further provided that: If two persons have been living together at the same address for six months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be genuine and continuing only for that reason. 8. The MRT found insufficient evidence for it to be satisfied that the parties had a commitment to a shared life as husband and wife to the exclusion of all others nor that their relationship was genuine and continuing. Following a determination of the factual matters placed before it the MRT considered that there did not exist between the applicant and his wife a spousal relationship as defined by the Migration Regulations 1994. 9. The Tribunal found that:- a) the applicant had six weeks overseas in the period since the marriage in China but had not sought to reunite with his wife at a neutral location; b) the wife had a limited knowledge of the applicant; c) the parties had combined their affairs and shared assets and liabilities but that this situation was in more recent times and not at the time of the primary application; d) the parties had claimed to live physically together as husband and wife from 28 December 2000 to 3 January 2001 only; and e) the applicant had travelled from Australia between 19 September 2001 and 18 October 2001. He had not sought to see his wife during that period and his wife had no knowledge as to his whereabouts during that period. 10. The Tribunal when considering the social aspects of the relationship noted that the applicant and his wife claimed to remain in contact by telephone and email. No telephone bills were produced to the Tribunal as the parties claimed to use phone cards. Only a small number of email exchanges between the couple were placed before the Tribunal and the seven photos submitted by the applicant of the couple together with relatives were taken during the applicant's visit to China and marriage in China from 16 December 2000 to 3 January 2001. The applicant at the time of the MRT hearing had not returned to China for 20 months despite his departure from Australia and time spent in Greece of six week's duration. 11. In considering the nature of the parties' commitment to each other the Tribunal noted that the applicant sent items to the work address of his wife's former spouse for greater convenience although there was no explanation as to the nature of the greater convenience. In addition the visa applicant spouse stated that she used to work at the same address as her former spouse and still had access to the mail clearance. The MRT found no evidence as to why she should retain access to the mail clearance of her former workplace. 12. In considering whether the relationship was genuine and continuing the MRT noted that the couple had discussed their marriage before meeting and agreed to marry two days after the applicant's arrival in China. He had not since travelled to China since his departure in January 2001. Although the applicant and his wife separately attested their love for each other as being genuine, the Tribunal found that the existence of a few cards and letters as well as some telephone communication could not be seen as supporting that claim. There was not satisfactory evidence as to how the relationship developed. 13. The applicant claimed that he and his wife had gradually got to know each other by phone and occasionally by letter before he travelled to China in December, marrying on 28 December 2000 in China. At the commencement of their telephone calls in or about December 1998 the applicant's wife claimed that the applicant gave her "a lot of confidence to be positive about the negative aspects of my married life" she being at the time married. Following the applicant's return to Australia on 3 January 2001 he claimed to remain in contact with his wife by means of a pre-paid mobile phone. The records of the call were not available to the Tribunal. The delegate of the Minister had interviewed the wife from 25 September 2001 she submitting several emails dating back to April 2001, photos taken on two separate occasions and a receipt for a cheque totalling AU$604 sent to her by the applicant husband. She claimed to know that the applicant had been on holiday for six weeks but that she did not know where. Further she claimed not to wear a wedding ring all of the time. She did not know the level of income nor the home telephone number of the applicant. She was unclear with respect to the name of the person with whom the husband lived. She could not state the names of the review applicant's family members. The wife of the applicant said to the delegate that the couple had decided to marry two days after the review applicant arrived in China and that although she had divorced her former husband in June 2000 she continued to use his work address for the sake of convenience because she used also to work at the same location. 14. Before the MRT the applicant advised that he and his wife intended to take a short holiday to Thailand from 3 October 2002 to 7 October 2002. He explained that his wife did not know of his income but knew that he had a steady job and that his wife would not remember the names of his family members because he had minimal contact with his family in Hong Kong in the preceding 15 years. The applicant claimed that his wife rarely used his home phone number to contact him and that his trip overseas was to look for a small business to operate in the event he left his current employment. Mail being forwarded to the address of his wife's former spouse was for safety reasons and his early return to Australia following the wedding was due to a pre-operative review although his operation was not until 18 January 2001. Between the hearing before the delegate and that before the MRT the applicant opened a superannuation contribution for his wife and enabled her to operate his share portfolio account. More recent emails were provided to the MRT. The applicant claimed that his little physical contact with his wife since their marriage was because each of them worked and had minimal leave and that it was difficult to visit China. Consideration 15. Following the High Court decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Act. 16. The High Court determined in that case that the privative clause provision in s.474 of the Act properly constructed is a valid enactment. He had found the proper construction of the Act, including s.474, imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority; see per Gleeson CJ (at 37-38) Gaudron, McHugh and Gummow JJ, Kirby and Hayne JJ (at 83); and per Callinan J at 160. 17. The decision in S157/2002 is binding upon this Court. An administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identified the wrong issue; asked itself a wrong question; ignored relevant material; relied on irrelevant material; or, in some circumstances, made an erroneous finding or reached a mistaken conclusion in a way that affected the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (see Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1 at 21. 18. Whatever the scope or extent of jurisdictional error of law I must determine the matter in accordance with the decision of S157/2002 v the Commonwealth of Australia. 19. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretions that are conferred by the Act; that is, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Division 3, Subdivision AB of the Act. 20. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it. The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant. 21. The central question to determine here is whether the Tribunal was in jurisdictional error. 22. The arguments of the applicant are that the Tribunal made errors as follows: a) it did not take into account the circumstances under which the applicant returned to Australia for a medical operation; b) it should have taken into account the applicant's telephone account which detailed telephone calls; c) it did not take into account September 11 2001, when assessing the travel schedule of the applicant; d) it did not take into account the emails sent between the applicant and his wife; e) it did take into account as an irrelevant consideration that the wife was unaware of her husband's income or that she did not remember his phone number given the circumstances of their relationship; f) it was wrong when it stated that the wife was unable to name the person with whom the husband lived or that the wife was unaware that the applicant was contemplating moving in to a small business; g) it took into account an irrelevant consideration being that the applicant sent items to the work address of the wife's former spouse. 23. It was submitted that all of the above alleged failures of the Tribunal constituted jurisdictional error in the Tribunal's decision-making function and that accordingly the decision was infected by jurisdiction error. 24. It is not in dispute that if the Tribunal asked itself a wrong question or ignored relevant material it would have fallen into jurisdictional error. The critical issue therefore is what the Tribunal in fact did in the reasoning process adopted by it. 25. I find the Tribunal to have made reasoned findings upon the inferences which were reasonably open to it to draw. As was stated by McHugh J in re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 67. (a) finding on credibility ... is the function of the primary decision-maker par excellence If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. 26. The Tribunal considered the matters put to it by the applicant and came to the conclusion that the applicant and his wife, the visa applicant, were not in a marital relationship which satisfied the definition of spouse as provided for in regulation 1.15A at the time of application. That conclusion is one with which the applicant disagrees. The MRT in its decision in particular in paragraphs 25 and 26 sets out its assessment of the factual material before it. Each inference in paragraph 26 can be attributed to the evidence before the MRT. 27. The Tribunal was required by s.368 of the Act to prepare a written statement setting out its decision on the review; the reasons for that decision; the findings on any material questions of fact; and refer to the evidence or any other material on which the findings of fact were based. 28. The Tribunal completed its task in the manner required and formed its own view of the weight to be given to different elements of the evidence. The fact finding process in considering those evidentiary matters placed before it by the applicant to confirm his testimony cannot be categorised as a jurisdictional error of law. 29. It is not for this Court to review the merits of the Tribunal's decision upon complaints such as the applicant raises in the proceedings before me as to the fact-finding process employed by the MRT. 30. The events of September 11 2001 were not put by the applicant as impacting upon the travel schedule arranged by him when travelling overseas to investigate business opportunities. The applicant put no evidence before the Tribunal that he was afraid and scared to travel anywhere subsequent to his arrival in Greece and it is not for the Tribunal to suggest a case that the applicant might like to put before it. 31. The Tribunal's reasons need to be read fairly and as a whole. It cannot be said that the satisfaction of the Tribunal was based on findings or inferences of fact not supported by some probative material or logical grounds (Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 145). It has not been established by the applicant that the Tribunal's conclusions were manifestly unreasonable. 32. The applicant also argued that the Tribunal had failed to accord him natural justice and failed to follow the procedures required by the Act. These arguments were taken no further in the submissions made before me. 33. The complaint of the applicant is that the Tribunal did not have regard to the whole of the evidence and did not properly assess the significance of supporting documentary evidence such as email correspondence. I am not persuaded that this accusation is justified. There is nothing to indicate that the Tribunal failed to consider the evidence provided to the Tribunal by the applicant as a whole before reaching a determination. 34. On a proper construction of the Tribunal's reasons the applicant is unable to show jurisdictional error of law on the part of the Tribunal sufficient to entitle him to succeed in this application. I am satisfied that the criteria as set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 are satisfied and that there has been no breach of an inviolable limitation. The application should be dismissed with costs. I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM Associate: L.M.Dorian Date: 24 June 2003
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