Zhan v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) relating to a decision taken by a Deputy Registrar of the Migration Review Tribunal (the "Tribunal") to the effect that the Tribunal had no jurisdiction to review a decision of a delegate of the respondent, because, it was said, the applicant was out of time in making her application. 2 The matter is a most unfortunate one, because the delay which has caused the legal difficulty is the making of neither the applicant, nor the respondent, but of Australia Post. A letter dated 26 April 2002 from the Manager of the Blacktown Delivery Centre of Australia Post states as follows: I am writing to explain that a registered letter (RP 12318945), addressed to Ms Zhifang Zhan, 2 Cardiff St Blacktown was not delivered until 16.4.02. The problem seems to be that our Australia Post Delivery Officer did not leave a card notifying Ms Zhifang Zhan that there was a Registered Letter for her to collect on the day it arrived and she was not notified until 16th April 2002. Please accept my apologies for the inconvenience caused and, if you need further information, please ring me on the telephone number above.

The Facts 3 The applicant is a national of China. She has a daughter whose father is the applicant's previous husband. In May 2000, the applicant applied to migrate to Australia under a spouse visa. She was sponsored by her partner Mr Sukander Lai, an Australian citizen. In the sponsorship documentation, Mr Lai indicated that he and the applicant were married on 19 May 2000 in Jiaxing City, Zhejiang Province, China. 4 The application thereafter proceeded. The applicant provided certain information as required by the Department. She was interviewed by an officer of the Department in Shanghai. 5 On 20 April 2001, a Departmental officer from the Department's Shanghai office wrote to the applicant in Jiaxing and informed her that she and her daughter had been granted temporary visas, the applicant receiving a "Spouse (provisional)" visa. 6 A little later on 26 April 2001, Mr Lai sent a handwritten facsimile from an Australia Post Office at Rydalmere to the Australian Visa Office in Shanghai, which contained a statutory declaration of Mr Lai stating the following: I would like to withdraw migration application from Ms Zhan Zhi Fang File Reference: 2000/136774JL. because our relationship has broken down. Thank you. 7 The reasons for Mr Lai sending this facsimile, and the course of events thereafter are not clear. It appears that there may have been some misunderstanding between Mr Lai and the applicant. Mr Lai appears, however, to have shortly thereafter recanted his views. On 28 April 2001, Mr Lai made a handwritten statutory declaration in the following terms: I have made mistake, I apologized to Ms. Zhan Zhi Fang File Reference: 2000/136774JL because she wasn't fault. If possible, I would like to invite her to come to Australia. After she arrives, I will look after her. I am going to provide; food and clothing, accommodations, medical treatment and financial support. Thank you for your attention. 8 The applicant sought to explain what had happened in an undated document which contained the following, after recounting that Mr Lai had sent the applicant money to travel to Australia: Apart from this, I have previously mentioned to him over the phone that it might be a heavy burden for him to raise another two persons, after I migrated, I would support the family, actually I raised the family in China, my ex-husband likes smoking and drinking. My child also advised him her father did not giver her mother any money. Upon hearing this, he was very unhappy stating I looked down on him, I insulted him as a man who was unable to afford a wife should not get married. He said his mother did not work for 60 years after she married and so does his sister and his sister-in-law. Anyway, I should not tell him about it, I should say I have to study first and in case he is not in good health then I go out to find a job. He was unpleasant for a week as I said I could manage to work at my friend's garments factory. All these were the reasons he repeated over the phone for 30 minutes and I'm not sure whether this is conclusive to the so called relationship broken-up. Anyway he realized it was totally a misunderstanding after I explained to him thoroughly about the equal job and equal opportunity in China for men and women. He felt regretful and stated he would ask lawyer to fax to your office again to restore the sponsorship. If your office still now satisfied, then next month he will take a holiday and come to Shanghai. He is an Indonesian Chinese, very traditional type, realized that over 2 years I have been making efforts to come to his side for better life and work though migration is not easy. Please trust us that we are sincere in the relationship and will not quit the chance for reunion due to a misunderstanding. Hope you will consider the situation and allow me to come to Australia asap to create our bright future. [emphasis added] 9 On 17 May 2001 Mr Lai sent a handwritten statutory declaration to the Department, which contained the following: I am writing in regard to my wife Zhan Zhi Fang File Reference: 2000/136774JL migration application which is currently being assessed by your office. First I apologized to you, because I have made trouble for you. Few weeks ago, on the phone, she told me, after she arrives in Sydney she is looking for her friend and working there, because her friend has small clothing factory. That time I was very upset, I thought she doesn't need me, why I sponsor her to come to Australia? The next day, I received her letter, I knew I was misunderstanding, because she loves me, she is going to live with me for ever and ever and attending English class which I suggested to her I miss her, need her and love her very much. I would like her to come to Australia as soon as possible. Thank you for your Kindness. 10 Meanwhile, it would appear that on 26 April 2001 the applicant's temporary visa and that of her daughter were cancelled under s 128 of the Migration Act 1958 (Cth)(the "Act"). 11 Notwithstanding this, it appears that the applicant came to Australia lawfully. 12 On 12 December 2001 a Departmental officer wrote to both the applicant and Mr Lai. The two letters were sent to the same residential address in Sydney where, it would appear, both the applicant and Mr Lai live. The letter to Mr Lai included the following: I am writing to acknowledge receipt of your letter dated 18 April 2001 advising that you no longer support the permanent visa application of Zhi Fang Zhang. The application also includes her dependant daughter, Yu Yue Zhang. The information below will help you understand what will now happen in relation to Zhi Fang Zhan's visa application. … As you have withdraw from the application, the Privacy Act 1988 prevents us from telling you anything about the applicant from this point forward unless the applicant consents in writing to that - please do not write or call for information as we are unable to assist you without their consent. Thank you for bringing this matter to our attention. Please be assured that your advice will be acted on. 13 The letter to the applicant was to the following effect: I refer to your application for permanent settlement in Australia lodged on 23 May 2000. The application also includes your dependant daughter, Yu Yue Zhang. We have been informed that the relationship on which your application was based is no longer continuing. There are three circumstances in which an application may continue to be assessed for the grant of permanent residence on spouse grounds despite the fact that your personal circumstances in respect to the application have changed. These are where: s The Australian citizen or permanent resident spouse has died, or s If your relationship has ended and you are a proven victim of domestic violence in that relationship, or s Maintenance obligations or custody/access rights in respect of any children have been granted to the Australian citizen/permanent resident spouse. If you wish to proceed with your application you must provide certain documents to the Department within 35 days of the receipt of this letter. If for some reason you are unable to provide the documents requested within 35 days of receiving this letter you should inform the department of the steps you are taking to acquire these documents. Consideration will then be given to the need or an extension of the 35 day period. Failure to provide the requested documents or to notify the Department you are unable to provide the requested documents, within 35 days, may result in your application being decided on the basis of the information held on your file at present. The documents required are: IF YOUR AUSTRALIAN PARTNER HAS DIED - your spouse's death certificate IF YOU ARE A VICTIM OF DOMESTIC VIOLENCE - Statutory declaration (Form 1040) by or on behalf of you, and - Statutory declaration (Form 1040) by a competent person, and - an confirmed restraining order or injunction against your spouse, the nominator, or - evidence of a conviction of assault on you by your spouse. OR - Statutory declaration by or on behalf of you, and - Two statutory declarations by competent persons. ACCESS - An order granted by a court which gives right of access to the Australian citizen or permanent resident to the children or MAINTENANCE - an obligation under an agreement registered under section 66zc of the family law Act 1975 that makes provision for maintenance; or - an order of a court specifying a maintenance obligation; or - a notice of acceptance, assessment and registration from the Child Support Agency of the Australian Taxation Office. Any documents that you send to the Department must be the originals, or photocopies certified by a Justice of the Peace, or a Commissioner for Declarations, or a person before whom a statutory declaration may be made under the Statutory Declaration Act 1959. A decision will be made on your application as soon as possible once you have provided the requested information. You must notify this department if you have any change in your circumstances, including a change of address, at any time before your application is finalised. [emphasis in original] For whatever reason, neither letter dealt with Mr Lai's recantation of his withdrawal of sponsorship and the explanations given by him and the applicant for the facsimile of 26 April 2001, set out at [6] above. 14 The applicant affirmed an affidavit to which there was no objection, and upon which she was not cross-examined. Paragraph 3 of that affidavit was in the following terms: On 31 December 2001 I wrote to DIMIA to explain that my relationship with my husband, Sukandar Lai, was continuing. In this letter I included a statutory declaration from Sukandar Lai. I no longer have a copy of this letter. 15 I accept this evidence. I find that the statutory declaration of Mr Lai enclosed was either that referred to at [7] above, or to like effect. 16 In March 2002, the Departmental officer who sent the letters of 12 December 2001, sent another letter to the applicant enclosing a decision record refusing the Spouse visa application. 17 It is now necessary to be precise about dates. 18 The date at the foot of the letter last referred to in [16] above was 20 March 2002. The letter was in the following terms: Dear Ms Zhan, I refer to your application for a permanent visa. The application includes the following applicants:- ZHI FANG ZHAN DOB 28.03.1962 YU YUE ZHANG DOB 16.02.1988 I am writing to advise you that the following applicants have been refused: ZHI FANG ZHAN DOB 28.03.1962 YU YUE ZHANG DOB 16.02.1988 You and each person included in the application were assessed under the Spouse (Migrant) Class BS. On the basis of careful consideration of the information you provided, your application was assessed under the Migration Act 1958 and against the criteria set out in the relevant Migration Regulations. A statement explaining the reasons for the refusal under each subclass is attached. I shall now explain to you what your current immigration status is, and the options you have now that your application has been refused. Your Current Immigration Status: When you lodged your application to remain in Australia you were granted a bridging visa to ensure you had lawful status throughout the processing of your application. This bridging visa will remain in effect for 28 calendar days plus 7 working days from the date of this letter. If you held a substantive visa (any visa other than a bridging visa or a criminal justice visa) at the time you lodged your application, the bridging visa would only have come into effect if the substantive visa expired. If you hold a current substantive visa it will remain in effect until the expiry date. Your Options: 1. Seek a review of this decision; You can apply to the Migration Review Tribunal for this decision to be reviewed. If you decide to apply for review, you must lodge the review application at a registry of the Tribunal within 21 calendar days plus 7 working days of the date of this letter and pay the prescribed fee. The enclosed leaflet provides information about the review by the Tribunal, including addresses where the application can be lodged. If you need further information about review by the Tribunal, you should contact one of the registries listed in the leaflet. [emphasis added] 2. Lodge a further application There are limitations on the types of applications you can now lodge. An information form (No. 1026i) "Limitations on Applications in Australia" is enclosed for your information. If you do lodge a further application, you will be granted a further bridging visa which will remain in effect until that application is decided. 3. Depart Australia If you do not hold a current substantive visa and you do not lodge a further application for a substantive visa and you do not lodge an application for review of this decision, then you must depart Australia by the date that your bridging visa ceases, that is , within 35 days of the date of this letter. Failure to depart by this date may result in you becoming an unlawful non-citizen. Unlawful non-citizens are subject to detention and removal from Australia, and may be excluded from re-admission to this country for a set period in the future. If you decide not to seek a review of the decision and not to lodge a further application you must leave Australia by the date your bridging visa ceases or, if you hold a substantive visa, by the date that ceases. You should advise the Compliance Section at this Office of your travel arrangements prior to departure. If you require any information, or need of the above matters clarified please contact the office on [number provided] and ask for the Compliance Section. Yours sincerely [signature] B Sanjiu P.N 1303 Residence Section Parramatta 20 March 2002 19 Contrary to what was in the second paragraph under the heading, "1. Seek a review of this decision;" no leaflet mentioned was provided. 20 There was enclosed a decision record which commenced with a table of information as follows: File reference: OSF2000/136774 Primary Applicant: Zhi Fang ZHAN Date of birth: 28 March 1962 Secondary applicant 1: Yu Yue ZHANG Date of birth: 16 February 1988 Nominator Sukandar LAI Date of application: 23 May 2000 Date of decision: 21 March 2002 Office of decision: Parramatta Primary decision: Application Refused Decision: REFUSED [emphasis added] 21 The decision record concluded with the delegate's signature in the following manner: B Sanjiu Delegate of the Minister for the purposes of Section 65 of the Migration Act 1958 Residence Section Parramatta 20 March 2002 22 It will be noted that the date of the decision was said to be 21 March 2002 at the beginning and 20 March 2002 at the end of the decision record. There was affidavit evidence, to which there was no objection and on which there was no cross-examination, to the effect that the Departmental computer business records reflect that the decision was made on 20 March 2002 and the information about its being made was entered into the computer on 21 March 2002. There was also affidavit evidence, to which there was no objection and on which there was no cross-examination, to the effect that the letter was taken as a registered mail item to Australia Post on 21 March 2002. 23 I find that the decision was made on 20 March 2002 and the letter with the enclosed decision record, but without any accompanying leaflet, was despatched as registered mail and given to Australia Post on the afternoon of 21 March 2002. 24 By reason of the arguments of the parties, it is necessary to set out much of the decision record. After a heading and the block of information set out at [20] above, the decision record began as follows: 1. LEGISLATIVE FRAMEWORK Part 100 of Schedule 2 of the Migration Regulations specifies the prescribed criteria for a Spouse (Migrant) visa. 2. EVIDENCE OR OTHER MATERIAL ON WHICH FINDINGS IS BASED In reaching the findings outlined below, I had regard to: [various documents were set out] 3. BACKGROUND The applicant lodged an application to remain permanently in Australia on the grounds of her marriage to Sukandar LAI, an Australian Citizen. The applicant arrived in Australia on 2 June 2001. The applicant is the holder of Subclass 309 visa and is now being considered for Subclass 100 visa. The applicant has included her dependant child, Yu Yue ZHANG, in the application. The Departmental record shows that Ms Zhang, has departed Australia on 1 September 2001, and has not re-entered. 4. ASSESSMENT OF ISSUES AND CLAIM The relationship was not of long standing. On 27 April 2001, the nominator withdrew his support for the application, advising the Department that the relationship on which the applicant's application was based is no longer continuing. On 12 December 2001 correspondence was sent to Ms Zhan, inviting comment regarding this information. To date there has not been a response to that letter. Regulation 1.15A, states, a couple have a genuine and continuing relationship that they are living together or not living apart on a permanent basis. 25 It will be noted that there was still no reference to the evidence of Mr Lai apparently recanting his communication in April 2001 about his relationship with the applicant. 26 The decision record continued by setting out the criteria to be satisfied at the time of the decision under Schedule 2, Subclass 100 of the Migration Regulations. Relevantly it set out Subclass 100.22 in the following terms: 100.221(1) The applicant meets the requirements of subclause(2), (3) or (4A). (2) The applicant meets the requirement of this subclause if: (a) the applicant is the holder of a Subclass 309 (Spouse (Provisional)) visa; and (b) the applicant is the spouse of the sponsoring spouse; and (c) subject to subclauses 95), (6) and (7), at least 2 years have passed since the application was made. [emphasis added] (3) The applicant meets the requirements of this subclause if the applicant: (a) first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa; and (b) would meet the requirements of subclause (2) except that, after the applicant first entered Australia as the holder of that visa, the sponsoring spouse has died; and (c) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died. (4) The applicant meets the requirements of this subclause if: (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa; and (b) the applicant meet the requirements of subclause (2) except that the relationship between the applicant and the sponsoring spouse has ceased; and (c) after the applicant first entered Australia as the holder of that visa - either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant: (B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them; has suffered domestic violence committed by the sponsoring spouse; (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring spouse: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation. 27 There then followed almost two full pages of close type setting out the interlocking definitions in the Regulations relevant to the word "spouse". 28 The record continued: It is a requirement, under the Migration Regulations, for the grant of a Class 100 spouse Visa, that partner/nominator continues to be the sponsor. The partner/nominator in this case withdrew his sponsorship of the applicant. Therefore, the sponsorship is no longer in force. This means a prescribed criterion for the grant of a Class Spouse visa has not been satisfied. [emphasis added] In view of the breakdown of the couple's relationship, I now considered whether the applicant meets the required requirements with respect to the following: - death of spouse - domestic violence - custody of children [emphasis added] The applicant's spouse is not deceased and also there is no information provided to the Department to suggest that the applicant meets the requirement with respect to domestic violence or custody matters. 4.2 As the applicant has failed to satisfy a prescribed criteria for the grant of a subclass 100 Spouse visa, she cannot be granted the visa in this visa Subclass. ASSESSMENT OF DEPENDANT I have also assessed the dependant (secondary) applicant against the relevant criteria. There is nothing in the departmental file to indicate that the dependant (Secondary) applicant in this case meets any of visas contain within the Spouse (Migrant) (Class BC) class as she is not nominated by the spouse. Further, the departmental record shows that the Yu Yue Zhang, has departed Australia on 1 September 2001, and has not re-entered. 5. DECISION The application for a visa in the Spouse (Migrant) (Class BC) visa for Zhi Fang ZHAN and her dependant, Yu Yue ZHANG is refused. 29 Notwithstanding that the Department delivered the registered letter to Australia Post on 21 March 2002, the applicant was not notified by Australia Post that there was a letter for collection by her until Tuesday 16 April 2002, according to the letter made reference to at [2] above. The applicant stated in her affidavit that she did not receive the card from Australia Post notifying her that there was a registered item for her to collect from Blacktown post office until 17 April 2002. The applicant was not challenged on this evidence. I find that she received the Australia Post card on 17 April 2002. 30 On Friday 19 April 2002 the applicant attended the Blacktown post office and collected the letter. She read it. It contained no leaflet. 31 On Monday 22 April 2002 the applicant attended the office of the Department at Parramatta and spoke to someone. The applicant gave this person a copy of the letter that she had sent to the Department on 31 December 2001, as to which see [14] and [15] above. This step was no doubt caused by a perusal of the letter and decision record which lacked any reference to the recantation of Mr Lai. 32 On Wednesday 24 April, Mr Lai telephoned the Department and spoke with the delegate, Ms Sanjiu who told Mr Lai that she could not look at the case further and that the applicant could lodge an appeal with the Tribunal. 33 The following day was Anzac Day. 34 On Friday 26 April 2002 the applicant lodged an application for review with the Tribunal. The applicant also gave the Tribunal the letter from Australia Post of the same date explaining the error, see [2] above. 35 On 26 April 2002 the applicant hand delivered to the Tribunal a letter she had written on 19 April 2002 to the Department, but not sent. It was in the following terms: Dear Sir/Madam Thank you for your letter, I received it this morning on 31-12-2001 I have already sent the Statutory Declaration from my husband Sukandar Lai to your office unfortunately you have not received it. Now I am sending again the copy to you. Thanks 36 On 27 June 2002 the applicant delivered a handwritten letter of Mr Lai to the Tribunal. The letter stated: Migration Review Tribunal Level 3 AXA Centre 44 Market Street Sydney NSW 2000 Blacktown, 27.06.2002 Dear Sir, Thank you for your letter from 22.06.02. I would like to continue the case until the end, because we've got right. Our married is genuine. We are living together as husband and wife and we love each other I appreciate if you could help us to review the case. Thanks Yours faithfully Sukandar Lai PS. Zhi Fang Zhan MRT. ref: No2/02777 Home: [number provided] Work: [number provided]