Liu v Minister for Immigration and Border Protection

Federal Court of Australia|2015-12-07|Before: Markovic J

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal): Liu v Minister for Immigration & Anor [2015] FCCA 1977. On 29 January 2015, the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a Partner (Temporary Class UK) sub-class 820 visa (the Visa).

Background 2 The appellant, a national of China, arrived in Australia on 13 December 2003 on a Business (Short Stay) visa which was subject to 8503 no further stay condition. The effect of that condition was that the appellant was not entitled to be granted a further substantive visa while he remained in Australia. That visa ceased on 13 January 2004. The appellant remained in Australia unlawfully and made a number of unsuccessful visa applications. 3 In December 2009, the appellant met Ms Danli Zhang. The appellant and Ms Zhang entered into a relationship approximately one year and five months later. In December 2011, Mr Liu and Ms Zhang committed to a long-term relationship and they were married on 13 February 2012. 4 On 27 July 2012, the appellant applied to the Minister for waiver of condition 8503 which had been imposed on his original short stay business visa. That application was made on the basis of the appellant's wife's health condition at the time. On 13 August 2012, a delegate of the Minister granted that application. The letter informing the appellant of the waiver of the 8503 condition included the following: The waiver of the 8503 condition should not be seen as an indication of the outcome of any further substantive visa application you make or that a further substantive visa will be granted to you. Whether or not a further visa is granted to you may depend on you satisfying all of the criteria for the grant of that visa. 5 As a consequence of the waiver of the 8503 condition, the appellant was able to apply for a further substantive visa. On 14 September 2012, the appellant applied for the Visa. That application was dependent on the appellant's relationship with Ms Zhang. On 4 April 2013, Ms Zhang notified the Department that she wished to withdraw her sponsorship of the Visa application as her relationship with Mr Zhang had ceased. 6 On 15 April 2013, the Department wrote to the appellant informing him that it had received information that the relationship on which the Visa application was based was no longer continuing. The Department informed the appellant that, in a case where the relationship has ended, an applicant could continue to be considered for grant of permanent residence on spouse grounds in limited circumstances. On 10 May 2013, the appellant responded to the Department. In his letter he set out the details of his relationship with Ms Zhang and the circumstances in which it came to an end. 7 By letter dated 4 September 2013, the Department sought further information from the appellant in relation to the Visa application, raising two separate requests: one request related to the Sch 3 criteria and the other related to the claim that the appellant had suffered family violence and sought further evidence of the appellant's relationship with his partner. The appellant was required to respond to the matters raised in that letter within 28 calendar days from its date. No response was provided by the appellant. 8 On 19 November 2013, a delegate of the Minister refused to grant the Visa. On 2 December 2013, the appellant applied to the Tribunal for review of the delegate's decision. By letter dated 14 November 2014, the Tribunal invited the appellant to appear at a hearing to be held on 14 January 2015 to give evidence and present arguments. 9 On 8 January 2015, the appellant's migration agent provided a written submission to the Tribunal. Under the heading "Conclusion" in that submission, the following was included: Having regard to the totality of the facts and the relevant law, the applicant has no other option but to concede that his application cannot be approved at [sic] that Tribunal must therefore affirm the decision to refuse the visa. Notwithstanding my observations, my client has instructed me to appear at the hearing set down at 9 am on 14 January 2015. 10 The hearing proceeded on 14 January 2015 as scheduled. Following the hearing, by letter dated 14 January 2015, the appellant's migration agent provided a further written submission to the Tribunal which included the following: I was advised by the client this morning after the hearing (0.10 am) that he had successfully sought a waiver of condition 8503 by reason of his wife's medical condition. This information may be relevant in terms of the schedule 3001 criterion but it is conceded that in any event, the breakdown of the relationship precludes the grant of a visa in the current case. In his letter the appellant's migration agent enclosed material which related to the appellant's application to the Department to waive condition 8503. 11 On 29 January 2015, the Tribunal affirmed the delegate's decision not to grant the appellant the Visa.

the LEgislative Framework 12 It is useful at this point to set out the relevant provisions of the Act and the Migration Regulations 1994 (the Regulations). 13 Section 65(1) of the Act provided (at that time) that, after considering a valid application for a visa, if the Minster is satisfied of four things set out in that subsection including that the other criteria prescribed for the visa by the Act or the Regulations have been satisfied, then he is to grant the visa. 14 The criteria to be satisfied at the time of application for the purposes of the Visa were those contained in cl 820.211 of the Regulations. In particular, cl 820.211(1) and (2) provide: (1) The applicant: (a) is not the holder of a Subclass 771 (Transit) visa; and (b) meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9). (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 (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 (d) in the case of an applicant who is not the holder of a substantive visa - either: (i) the applicant: (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and (B) satisfies Schedule 3 criterion 3002; or (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 15 For the purposes of the consideration of the grounds of appeal it is only necessary to set out Sch 3 criteria 3001 which was in the following terms: (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: (a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of: (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully; or (d) if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of: (i) the day when that last substantive visa ceased to be in effect; and (ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

The Tribunal's Decision 16 After setting out the relevant background facts, the Tribunal identified that the issue in the case was whether the appellant could meet Sch 3 criteria or whether those criteria should be waived. The Tribunal noted that an applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Sch 3 to the Regulations. The Tribunal noted that it was not in dispute that the appellant did not have a substantive visa at the time of application. Accordingly, the appellant needed to satisfy Sch 3 criteria 3001, 3003 and 3004 unless the Minister was satisfied that there were compelling reasons for not applying those criteria. 17 The Tribunal noted that in order to satisfy criterion 3001, the appellant's Visa application must have been lodged within 28 days of the relevant day. The relevant day for the purposes of the appellant was the last day on which he held a substantive visa. The Tribunal found that, as the appellant's last substantive visa ceased on 13 January 2004, the Visa application was not made within 28 days of the relevant day. Accordingly, the appellant did not satisfy criterion 3001. 18 Given the Tribunal's finding that it did not meet the relevant Sch 3 criteria, it then went on to consider whether there were compelling reasons for not applying the criteria. It observed that the term "compelling reasons" is not defined and referred to the relevant case law. It noted that compelling reasons may include circumstances where there is an Australian citizen child or there is a long-standing relationship (at least two years) between the applicant and the sponsor at the time of the application. The Tribunal found that neither of these circumstances was apparent on the evidence before it. 19 The Tribunal considered the evidence given by the appellant at the hearing and the evidence provided after the hearing. Based on the evidence it was not satisfied that Ms Zhang depended on the appellant for support in her health matters because: (1) Ms Zhang's chemotherapy was complete before she met the appellant; (2) while the appellant provided evidence that Ms Zhang's dental treatment took between 10 to 20 days, post-hearing evidence indicated it took one to two days and there was evidence that Ms Zhang responded well to her treatment; and (3) there was no evidence about on-going treatment for Ms Zhang's bi-polar condition. 20 Based on all of the evidence considered by the Tribunal, including that in the Department and Tribunal files, the pre and post-hearing submissions and the evidence at the hearing, the Tribunal was not satisfied that there were compelling reasons for not applying the Sch 3 criteria. Accordingly, the Tribunal found that the appellant did not meet cl 820.211(2)(d)(ii) and affirmed the decision under review.

Proceedings before the Federal Circuit Court 21 On 18 February 2015, the appellant commenced proceedings in the Federal Circuit Court for judicial review of the Tribunal's decision. In his application the appellant raises two grounds (as written): 1 The relationship between Danli and me is genuine and continuing and I have strong evidences to waive Schedule 3 criteria when I applied for partner visa on 18/9/2012. We entered into a relationship in 2010, and got married on 13/2/2012. It has been two years when we applied the partner visa. She is in poor health. I take care of her all the time and got along well with her children. The only reason that RRT refused my application was that I did not meet Schedule 3 criteria. However, I have successfully waived my 8503 criteria, which means that I have compelling reasons to waive those criteria. Therefore, the decision made by RRT is not fair to me. 2 I love Danli Zhang so much. But unfortunately, I suffered family violence all the time when I lived with her. 22 Ground 2 included a lengthy description of the "mistreatments" which the appellant alleged he suffered. 23 On 1 July 2015, after hearing the matter, the primary judge gave an ex tempore judgment dismissing the application. 24 The primary judge rejected ground 1. He found that the fact of the waiver of condition 8503 did not of itself give rise to "compelling reasons" for the purpose of cl 820.211(2)(d) because the circumstances giving rise to the waiver of condition 8503 raise different questions to those under cl 820.211(2)(d). Further, while the Tribunal did not expressly refer to the waiver of condition 8503 in its decision, it had referred to the factual matters that underpinned the waiver request and were included in the appellant's migration agent's post-hearing submissions as well as the evidence and other submissions made to it. The primary judge found at [26] of his decision that there was no error by the Tribunal in simply failing to refer to the waiver of condition 8503. 25 In relation to the second ground, the primary judge observed that the matters relating to domestic violence go to whether or not the appellant met the criteria for the grant of the visa. As a result he found at [12] that it was not a question for the Court but a matter for the delegate at first instance and the Tribunal on review.

The Appeal 26 The appellant filed a Notice of Appeal in this Court on 15 July 2015 in which he raises two grounds of appeal which replicate the grounds raised in the Court below (see [21] above). 27 Pursuant to directions made by the Court on 15 July 2015, the appellant was given an opportunity to file written submissions in support of his grounds of appeal which he did not do. In response to a query from me about that, the appellant said that he had not filed submissions because he had not received any material from the Court. 28 Counsel for the Minister submitted that the appellant had notified an address for service in his Notice of Appeal being PO Box 1659, Auburn, NSW, 1835 and that the Minister's solicitors had sent three communications to that address, namely, the Minister's notice of appearance and the Court's directions made on 15 July 2015, the Appeal Book and the Minister's submissions and list of authorities. Counsel for the Minister also observed that the Court's notice of listing dated 28 September 2015 had been sent to the appellant at his address for service as well as two other addresses which were included in the Notice of Appeal: one at the bottom of the front page where details of the filing party are recorded including an address against the description "Address for Service" and one at page 2 under "Email". 29 The appellant submitted that when letters were sent to the post office box address, his friend would notify him and that the post office box was shared with "many people". The appellant submitted that he wished to change his address for service for future correspondence. The appellant did not have any documents relating to his appeal with him at the hearing, including his notice of appeal. 30 Rule 36.01(1) of the Federal Court Rules 2011 (the Rules) provides that a party who wants to appeal to the Court must, for an appeal from the Federal Circuit Court of Australia, file a Notice of Appeal in accordance with Form 121. Form 121 requires at page 2 under the heading "Appellant's address" that the appellant provide an address for service. That part of the Form refers the user to r 11.01 of the Rules which provides that: (1) An address for service for a party must include the address of a place within Australia at which a document in the proceeding may, during ordinary business hours, be left for the party and to which a document in the proceeding may be posted to the party. ... (3) The address for service must contain the information mentioned in rule 2.16. … (5) If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address. 31 Rule 2.16 of the Rules provides: (1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document: (a) the name and role of the party on whose behalf the document is filed; (b) the name of the person or lawyer responsible for preparation of the document; (c) if the party is represented by a lawyer - the telephone number, fax number and email address of the lawyer; (d) if the party is not represented by a lawyer - the telephone number, fax number and email address, if any, of the party; (e) the address for service of the party. (2) In this rule: role of the party means the capacity in which the party is participating in the proceeding. 32 The appellant did not provide an email address. He provided a street address in that part of the document which provides for the provision of an email address. The Minister's solicitors relied on the address for service included at page 2 of the Notice of Appeal and provided the appellant with a copy of the directions made by the Registrar on 15 July 2015, a copy of the Appeal Book and the Minister's submissions and list of authorities at that address. While the appellant included a different address at the foot of the first page of the Notice of Appeal, in my view, the Minister was entitled to rely on the address included at page 2 of the Notice of Appeal as the appellant's address for service. The fact that the post office box provided as the address for service was shared with other people was not relevant to the Minister's entitlement to rely on that address as a valid address for service. On that basis, I proceeded with the hearing of the appeal.

Ground 1 33 By this ground of appeal, the appellant appears to contend that the waiver of condition 8503 which had attached to the appellant's earlier visa meant that there were "compelling reasons" to waive compliance with the Sch 3 criteria and that the Tribunal should have found that "compelling reasons" did exist. 34 When invited to make oral submissions, the appellant submitted that the Tribunal did not consider the waiver of the 8503 condition when it was considering his application for the Visa and whether there were compelling reasons. The appellant also submitted that the Minister's department had cancelled his work permit which he believed was unfair. The appellant wished to submit more documents or evidence, which he had not done to date. 35 The Minister submitted that reg 2.05(4) provides that a condition attached to a visa (such as condition 8503) may be waived if, since the grant of the visa, "compelling and compassionate circumstances have developed" over which the visa holder has no control and which have resulted in a major change to the person's circumstances. In its decision, the Tribunal was assessing whether there were "compelling reasons" to waive compliance with criteria 3001, 3003 and 3004, for the purpose of determining whether the appellant satisfied cl 820.211(2)(d) of the Regulations. There are no express terms in cl 820.211(2)(d) or criteria 3001, 3003 of 3004 (or indeed any other part of the Act or Regulations) which require that, if a finding of "compelling and compassionate circumstances" is made under reg 2.05(4) it follows that there must be a finding of compelling reasons under cl 820.211(2)(d). The Minister submitted that each of these assessments is a different determination and each applies different criteria. The language is similar but not identical and each of the respective decisions is made in its own circumstances, in relation to different types of application, and by a different decision-maker. To the extent the appellant argues that the Tribunal should have found that there were "compelling circumstances" on the basis that there had been a waiver under reg 2.05(4) of condition 8503 on his previous visa, that claim amounts to no more than an attempt to impermissibly impugn the merits of the Tribunal's decision. 36 Further, the Minister submitted that while the Tribunal's reasons do not expressly refer to the waiver issue, it cannot be said that the Tribunal failed to take this issue into account. The Tribunal's reasons expressly state that it took into account the appellant's post-hearing submissions and discussed the medical records which were included with that submission. 37 It is not in dispute between the parties that the appellant could not meet the relevant time of application criteria in that, at the time he made his application for a visa, he was neither the holder of a substantive visa nor had he made his application for the Visa within 28 days of last holding a visa. Having failed to meet that criterion, the appellant could only be granted the visa for which he applied by satisfying the Minister that there were compelling reasons for not applying the Sch 3 criteria. 38 The term "compelling reasons" is not defined in the Regulations. Counsel for the Minister referred me to two relevant decisions of this Court, which were also referred to by the Tribunal, which considered the term "compelling reasons". In Babicci v Minister for Immigration, Multicultural & Indigenous Affairs (2005) 141 FCR 285, a Full Court of this Court found at [24] that: There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of "compelling". But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived. In MZYPZ v Minister for Immigration & Citizenship & Anor (2012) 127 ALD 510, Bromberg J said the following in relation to the meaning of "compelling reasons" at [10]-[13]: [10] That subclause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, "compelling reasons" means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 at [39] per Crennan J. The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [24] per Tamberlin, Conti and Jacobson JJ. [11] As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]: [10] … Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective "compelling" does not introduce an objective standard. The waiver decision will always involve a subjective judgment. [12] In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred. [13] The decision-maker needs to be "satisfied" that compelling reasons exist. 39 In light of those decisions, in order for the Sch 3 criteria to be waived, the decision-maker needs to be satisfied that compelling reasons exist. The circumstances must be "so powerful" that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria. 40 In my view, and as submitted by the Minister and found by the primary judge, the fact of the decision to waive criterion 8503 in relation to the appellant's first visa, could not amount to a compelling reason for not applying a criterion in relation to the Visa application. As the primary judge found at [23] of his decision, this is because the circumstance relevant to the waiver of condition 8503 was a different question from that raised by cl 820.211(2)(d). The relevant decision-maker needs to be satisfied that there were compelling reasons to waive compliance with the Sch 3 criteria. In this case, the Tribunal could not reach that state of satisfaction. 41 The relevance of the waiver of condition 8503 to the appellant's case was raised by the appellant's migration agent in a post-hearing submission. The matters that led to the waiver of condition 8503 were the wife's medical condition which was set out in the documents that were included with the appellant's post-hearing submission. As found by the primary judge at [26] and submitted by the Minister, the Tribunal did take into account those matters relevant to the waiver of condition 8503. At [26] of its decision, the Tribunal refers to the post-hearing evidence relating to Ms Zhang's medical condition and at [28] of its decision the Tribunal expressly states that it has considered all of the evidence including the "post Tribunal hearing" submissions. Clearly, the Tribunal took into account those matters included in the post-hearing submission that were relevant to the waiver of condition 8503. As the primary judge concluded at [26], "there was no error by the Tribunal in simply failing to refer to the waiver of condition 8503" in its decision. 42 There is no error in the approach of the primary judge in relation to this ground.

Ground 2 43 By this ground, the appellant alleges that he suffered "family violence" when living with Ms Zhang. A description of the alleged violence is included in the Notice of Appeal. 44 The appellant did not make any oral submissions at the hearing in relation to this ground of appeal. 45 The Minister submits that the existence of family violence may arise for consideration under cl 820.211(3)(b). However, the Tribunal did not decide this matter by reference to that clause and accordingly the matters raised by the appellant are not relevant. The Minister also submits that, in any event, this ground effectively asks the Court to find that the appellant was the subject of family violence, an assessment which is a factual matter for determination by the decision-maker and not the Court. 46 As set out at [7] above, by letter dated 4 September 2013 the Minister's delegate invited the appellant to provide evidence about the allegation he made that he had suffered family violence at the hands of Ms Zhang. However, the appellant did not respond to that invitation and provided no evidence as requested. Accordingly, that matter never formed the basis of a decision either by the delegate or subsequently by the Tribunal. 47 By this ground, the appellant is asking the Court to determine whether or not he met the criteria for the grant of the Visa. That is not a matter for determination by this Court just as it was not a matter for determination by the primary judge. As the primary judge correctly observed at [12] to [13]: [12] ... The matters concerning domestic violence are matters that go to whether or not the applicant met the criteria for the grant of the visa. That, however, was not a question for the Court to decide; that was a question for the delegate at first instance and the Tribunal on review. [13] This Court does not have power to inquire into whether or not the applicant in fact suffered domestic violence and so the allegation in ground 2 could not possibly support any of the relief sought by the applicant. It is rejected. 48 For these reasons, ground 2 cannot succeed.

Conclusion 49 For the above reasons, neither of the grounds of appeal can succeed and the appeal should be dismissed with costs. I shall make orders accordingly. I will also order that the name of the second respondent be changed to "Administrative Appeals Tribunal" . I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Migration Act 1958(Cth)ss 65(1)

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