Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 (23 March 2005)

Last Updated: 23 March 2005

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 30

MIGRATION – decision of Migration Review Tribunal refusing Partner visa – decision of primary judge affirming the decision of the Tribunal – whether Tribunal erred in failing to have regard to the social aspects of the relationship as required by reg 1.15A(3)(c) of Migration Regulations 1994 – role of appellate court in cases where decision appealed from involves an inference as to whether Tribunal had overlooked a material issue

Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994

Nassouh v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 788 referred to
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 followed
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 referred to
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 referred to
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 referred to
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 referred to
Fox v Percy (2003) 197 CLR 201; [2003] HCA 22 considered
Sidhu v Holmes [2000] FCA 1653 considered
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 considered
H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 considered
Minister for Immigration & Multicultural Affairs v Zitoni [2000] FCA 1225 considered
Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111 considered


SHI XIU ZHANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL


NSD.1320 of 2004


MOORE, MANSFIELD & DOWSETT JJ
23 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD.1320 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SHI XIU ZHANG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MOORE, MANSFIELD & DOWSETT JJ
DATE OF ORDER:	23 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal be dismissed.
2.	The appellant pay to the first respondent her costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD.1320 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SHI XIU ZHANG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MOORE, MANSFIELD & DOWSETT JJ
DATE:	23 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1 This is an appeal from a judgment of a judge of the Court given on 25 August 2004. His Honour dismissed an application under s 39B of the Judiciary Act 1903 (Cth) for orders of certiorari, mandamus and prohibition in respect of a decision of the Migration Review Tribunal (the Tribunal) made on 14 January 2004. The Tribunal affirmed a decision of a delegate of the respondent of 29 November 2002 not to grant to the appellant a Partner (Temporary) (Class UK) visa (the visa) for which she had applied under the Migration Act 1958 (Cth) (the Act). The application for the visa was made on 15 July 2002.

2 The appellant is a Chinese national. She first came to Australia in May 1996 on a business visa and departed two weeks later. She then returned to Australia in June 2001, again on a business visa, which allowed her to remain in Australia for three months from each date of arrival. The appellant used the visa to travel to Australia several times during both 2001 and 2002. Her last arrival on a business visa was on 21 April 2002 which allowed her to stay in Australia until 21 July 2002. Since then she has held a bridging visa. The appellant seeks to remain permanently in Australia on the ground of her spousal relationship with Mr John Czapla (Mr Czapla), an Australian citizen.

THE RELEVANT PROVISIONS

3 The criteria of which the Tribunal had to be satisfied if it were to grant the visa are relevantly contained in cl 820.211 of the Migration Regulations 1994. At first instance, and on appeal, only one part of that clause was the subject of contentions. It is therefore necessary to refer to part only of cl 820.211. It provides:

‘820.21 Criteria to be satisfied at time of application

820.211 (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) The applicant meets the requirements of this subclause if:

(a)	the applicant is the spouse of a person who:
(i)	is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and

...’

4 Spouse includes a person in a de facto relationship as described in par (2) of reg 1.15A. It provides:

‘(2) Persons are in a de facto relationship if:

(a) they:

(i)	are of opposite sexes; and
(ii)	are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii)	are not within a relationship that is a prohibited relationship for the purposes of subsection 23B(2) of the Marriage Act 1961; and

(b) they are of full age, that is:

(i)	if either of the persons is domiciled in Australia – both of them have turned 18; or
(ii)	if neither of the persons is domiciled in Australia – both of them have turned 16; and

(c) the Minister is satisfied that:

(i)	they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)	the relationship between them is genuine and continuing; and
(iii)	they:
(A)	live together; or
(B)	do not live separately and apart on a permanent basis; and

(d) subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:

(i)	they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)	the relationship between them was genuine and continuing; and
(iii)	they had;
(A)	been living together; or
(B)	not been living separately and apart on a permanent basis.’

Paragraph 2A(b) of reg 1.15A further states that par 2(d) does not apply if the applicant can establish compelling and compassionate circumstances for the grant of the visa.

5 It is the requirement in subpar (d) of reg 1.15A(2), namely that the decision-maker is satisfied that, for the period of 12 months immediately preceding the date of the application, (that is for the period of 12 months immediately preceding 15 July 2002) the appellant and Mr Czapla had a relationship as prescribed, which was the focus of the proceedings in this Court. Regulation 1.15A(3) then provides:

‘(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

...
(ag) a Partner (Temporary) (Class UK) visa;

the Minister must have regard to all of the circumstances of the relationship, including in particular:

(a) the financial aspects of the relationship, including:
...
(b) the nature of the household, including:
...
(c) the social aspects of the relationship, including:

(i)	whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii)	the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)	any basis on which the persons plan and undertake joint social activities

THE TRIBUNAL’S FINDINGS

6 The Tribunal found the appellant and Mr Czapla were married on 2 November 2002. It was also satisfied that they were in a genuine spousal relationship both at the time of the application and at the time of its decision.

7 It was the additional requirement of the definition in reg 1.15A(2)(d) upon which the application for the visa foundered. The Tribunal was not satisfied that the appellant and Mr Czapla commenced a de facto relationship by 28 June 2001, or by 14 July 2001 (12 months prior to the visa application), as she claimed. It concluded their de facto relationship did not commence until February 2002. It said:

‘There is little evidence supporting the claim that the couple started living together in June 2001, a few days after the review applicant arrived in Australia. Evidence that may have been provided showing the review applicant’s address as Brunker Road, is absent. That is, the applicant departed Australia in early September 2001 and again in early December 2001. It appears she went to New Zealand on these occasions and applied for a New Zealand visa whilst in Australia, and purchased airline tickets. She claimed that she had bought the ticket and applied for the visa through a travel agent and therefore the New Zealand consulate would not have evidence of her address and neither would the travel agent. The Tribunal does not accept her evidence on this point.

The Tribunal also does not accept that a defacto relationship commenced within the short time frame of meeting each other as claimed. Even if the review applicant moved into shared accommodation with the nominator at the date claimed, the Tribunal does not accept that they were in a defacto relationship by 14 July 2001 (12 months before the visa application).

There are inconsistencies in the claims as to how the couple met. The visa application states they met at a club through ‘Lisa’. At the hearing the review applicant claimed that she had answered a shared accommodation advertisement. The Tribunal places February 2002 as being the earliest date for any defacto relationship as that is when the first tangible evidence, the joint account, was opened.’

8 The Tribunal then further determined, as required by reg. 1.15(2A)(b), that the appellant had not established compelling and compassionate circumstances for the grant of the visa. There is no assertion that that final step in its reasons involved jurisdictional error.

9 In reaching its decision, the Tribunal referred to the requirements of Regulation 1.15A and acknowledged it to contain the test to be applied to determine whether one person is the spouse of another person with respect to subclass 820 visas. In doing so, the Tribunal acknowledged the decision in Nassouh v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 788 where the Federal Court held that subreg 1.15A(3) set out mandatory considerations. The Tribunal thus concluded:

‘Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons’ commitment to each other.’ (our emphasis)

THE DECISION AT FIRST INSTANCE

10 At first instance, it was necessary for the appellant to establish that the Tribunal had committed jurisdictional error before she could obtain relief under s 39B of the Judiciary Act 1903 (Cth): Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.

11 Counsel for the appellant submitted that the Tribunal fell into jurisdictional error by forming an opinion about the existence or otherwise of a de facto relationship from 14 July 2001 without having regard to the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities.

12 The learned judge at first instance did not accept that contention. His Honour accepted that, following Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 per Gummow and Hayne JJ at 1001 [51], if the Tribunal had overlooked the factors in subreg 1.15A(3)(c), it would reveal jurisdictional error. However, His Honour concluded that ‘on a fair reading of the Tribunal’s reasons and in the light of the specific content of its correspondence with the applicant’ he was unable to find that those factors had been overlooked. His Honour, on the contrary, considered that

‘... it is clear that the Tribunal had all the factors in subreg 1.15A(3) firmly in mind when forming its opinion. Having disbelieved the evidence of the four persons who claimed to have lived at the same address since June 2001, there was no reason why the Tribunal should specifically reject the statements provided much earlier by persons who did not claim to live there.’

GROUND OF APPEAL

13 The contentions on the appeal mirrored those put at first instance. Counsel contended that the Tribunal had not had regard to the issues which it was required to address by reg 1.15A(3)(c), and that therefore the Tribunal had committed jurisdictional error.

CONSIDERATION

14 The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal’s reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or of authorities will not necessarily demonstrate that regard. In Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Kirby J said at 595:

‘... the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred.’

15 The Tribunal was aware of the obligation to address the matters referred to in reg 1.15A(3). It referred to Nassouh v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 788 in acknowledging that obligation. In correspondence with the appellant of 11 September 2003 and more particularly of 21 October 2003, it specifically recognised the need to look to the nature of the relationship between the appellant and Mr Czapla in the 12 month period preceding 15 July 2002. The relevant passage is set out in [9] above. It is apparent those descriptions of reg 1.15A(3) relate to each of its subparagraphs, including by the emphasised words ‘the social aspects of the relationship’ reference to subpar (3)(c).

16 Counsel for the appellant pointed out that the appellant had lodged with her visa application statutory declarations of three of her friends or acquaintances who attested to the genuineness of the relationship of the appellant and Mr Czapla in the period of 12 months before the making of the application. Each of the appellant and Mr Czapla had also attested to that matter. It was pointed out that the Tribunal had not mentioned those three statutory declarations in its reasons, except as ‘3 statutory declarations’ accompanying the visa application (in its recital of the evidence) and later as ‘statutory declarations by mutual friends ... attesting to the genuineness of the relationship’. Nor, it was pointed out, had the Tribunal made any specific finding in terms of the topics in placita (i), (ii) or (iii) of reg 1.15A(3)(c). The absence of any express findings about those statutory declarations or on those topics, it was contended, indicated that the Tribunal overlooked addressing those topics or did not consider those topics material. Reliance was placed on the remarks of Gleeson CJ in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], and of McHugh, Gummow and Hayne JJ at [69].

17 The appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is by way of rehearing: see eg. Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at 434-435, [20]. In that case, Allsop J (with whom Drummond and Mansfield JJ agreed) pointed out at 438, [30] that an appeal should succeed only when the views and conclusions of the judge at first instance have been shown to be wrong. As his Honour said, the views and conclusions of the judge at first instance ‘should not be laid to one side and a simple re-argument of the case take place’. In Fox v Percy (2003) 197 ALR 201; [2003] HCA 22, the majority judgment (Gleeson CJ, Gummow and Kirby JJ) at 207, [23] reinforced the obligation of an appellate court to give the judgment which ought, in its opinion, to have been given in the first place but recognising the ‘natural limitations’ that exist in an appellate court proceeding wholly on the record. Where the decision at first instance involves a conclusion as to whether an administrative decision maker took into account a particular matter which was required to be taken into account, an appellate court is in as good a position as the judge at first instance to draw such a conclusion. Nevertheless, as the Court (Heerey, Moore and Goldberg JJ) observed in Sidhu v Holmes [2000] FCA 1653 at [8]:

‘In a situation such as this, where the primary fact finding by the Tribunal is not challenged, and is found in the reasoning of the Tribunal, an appellate court is, no doubt, in as a good a position as the trial judge to decide the proper inferences to be drawn from that evidence. However, it is not for an appellate court to disregard the inferences drawn from the evidence by the trial judge. Not only is it appropriate to give respect and weight to the decision of the trial judge in deciding what inferences should be drawn from the evidence: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, but such a decision should not be interfered with if the trial judge has reached a conclusion based upon competing inferences. The trial judge’s decision on the appropriate inferences to be drawn will only be the subject of interference by an appellate court if the trial judge failed to draw inferences that should have been drawn on the evidence. In Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 Beaumont and Lee JJ observed at 369:

"The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (supra) (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusions, it is speaking of a conclusion that the decision of the trial judge is wrong and it should be corrected."’

A similar approach was adopted by Branson and Katz JJ in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 at [11]. See also the remarks of French, Hill and Weinberg JJ in Minister for Immigration & Multicultural Affairs v Zitoni [2000] FCA 1225 at [30], and of Moore J in Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111 at [13]- [14]. In the last-mentioned case, Moore J dissented from the majority as to the outcome of the appeal, but we think his Honour’s views as to the correct approach to be taken on appeal was consistent with that of the majority.

18 For the reasons which follow, we do not consider the learned judge at first instance fell into error. We think the conclusions his Honour drew from the Tribunal’s judgment were available conclusions and were not reached by any erroneous process or reasoning.

19 The Tribunal referred at some length to the evidence about the nature of the relationship between the appellant and Mr Czapla in the 12 month period preceding 15 July 2002. The appellant said they met on 24 June 2001 and commenced living together on 28 June 2001 at Mr Czapla’s home (where he lived with his mother and younger sister). Its conclusions set out at [7] above reflect its consideration of all that evidence, including the three statutory declarations referred to. In our view, it clearly did not overlook that material. It was a matter for the Tribunal as to the weight to attach to each piece of evidence. The opening words of the quoted conclusions indicate it was aware of the evidence that the appellant and Mr Czapla started living together in June 2001. Despite that evidence, it concluded that a de facto relationship did not commence before February 2002. The fact that the Tribunal has not, in terms, made express findings about each of the matters referred to in placita (i), (ii) and (iii) of subreg 1.15A(3)(c) does not demonstrate in the present circumstances that the Tribunal did not have regard to those matters, or to the social aspects of the relationship between the appellant and Mr Czapla from late June 2001.

20 In its reasons, the Tribunal did not laboriously evaluate seriatim each of the considerations in reg 1.15A(3). However, it did consider evidence adduced by the appellant which appears to fall into each of the specified issues. In sequence, it considered evidence of the couple’s financial arrangements (taking into account the appellant’s oral evidence as to their arrangements and documentary evidence such as bank and superannuation statements), and then of their household relationship including the circumstances of their living arrangements such as the couple’s shared responsibility for caring for Mr Czapla’s mother. It also addressed the evidence as to the social aspects of the relationship, including that of the sister-in-law and ‘a number of photos and statutory declarations by mutual friends and the nominator’s mother attesting to the genuineness of the relationship’ the appellant had provided as well as two more recent statutory declarations of Mr Czapla’s mother and of the owner of a grocery store in Sefton. Those matters point clearly to the Tribunal having addressed each of the matters which reg. 1.15A(3) required, including that identified by reg 1.15A(3)(c).

21 For the reasons given, not only do we consider that the learned judge at first instance did not fall into error, but we agree with his Honour that a fair reading of the Tribunal’s reasons indicates that it did have regard to each of the matters which reg 1.15A(3) required it to consider. It reached its conclusion on the matter required by reg 1.15A(2)(d) on the whole of the evidence, and had regard to all the circumstances of the relationship including each of the circumstances specified in reg 1.15A(3).

22 The appeal should therefore be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Mansfield & Dowsett.

Associate:



Dated: 21 March 2005

Counsel for the Appellant:	L Karp
Solicitor for the Appellant:	Ren Zhou Lawyers
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 March 2005
Date of Judgment:	23 March 2005