FEDERAL COURT OF AUSTRALIA

Ji v Minister for Immigration & Multicultural Affairs [2001] FCA 904

MIGRATION – whether the Tribunal failed to have regard to matters raised by the applicant – whether any reviewable error

Migration Act 1958 (Cth) Pt 8

Migration Regulations 1994 (Cth), Sch 2, cl 850.214

JI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 540 OF 2000

JUDGE:          MERKEL J

DATE:            9 JULY 2001

PLACE:          MELBOURNE

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s taxed costs of and incidental to the application.

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

REASONS FOR JUDGMENT

1                     In this matter the applicant has applied under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 28 June 2000.  The Tribunal affirmed the decision of the delegate of the minister to refuse the grant of a resolution of State (temporary) (class UH) visa subclass 850 to the applicant.  The applicant’s grounds of review are set out in his second amended application.

2                     The applicant appeared before me in person although he previously had the assistance of solicitors and counsel in preparing his application and submissions in support of his application to review the decision of the Tribunal.

3                     In a case such as the present, a court’s role on review is very limited.  Essentially, the review in the present case requires the Court to consider whether two critical findings made against the applicant involved an error of law or some other reviewable error under Pt 8 of the Act.  The factual issue upon which the decision of the Tribunal turned related to the applicant’s absence from Australia for some 1156 days from 1993 to 1996.  Under cl 850.214 of Sch 2 of the Migration Regulations the Tribunal was required to form a view on two factual matters relating to the applicant’s absence from Australia.  The first issue was whether the applicant had maintained “close business, cultural or personal ties in Australia” notwithstanding his absence from Australia.  The second issue was whether the Tribunal was satisfied that “compelling or strongly compassionate circumstances exist that explain why the applicant was outside Australia” during the relevant period.

4                     The Tribunal found against the applicant on both of these questions of fact.  The Tribunal dealt with the first question at para 25 of its reasons:

“The visa applicant in his evidence claimed that he maintained close business contacts with Australia during the time he was in China as a representative for Aust-Asia Appointments International P/L and Australia Products Display Centre P/L.  Jack Chang gave evidence that he had a verbal agreement with the visa applicant during this period.  The only evidence the visa applicant could produce of this relationship were the offer of employment made in 1997, references from Jack Chang written in 1998 (all these documents date from after the visa applicant's return to Australia in 1996) and copies of Chinese business cards.  Jack Chang did not sponsor the visa applicant to Australia in 1996; rather he was sponsored by a real estate company that he had worked for while in China.  Given the visa applicant’s own evidence about his ongoing employment in two broker firms and a real estate firm while in China during 1993 to 1996 and the evidence of Jack Chang that at most the visa applicant spent 10% of his time working for him in China, the Tribunal finds that his relationship with Jack Chang and his two companies do not amount to ‘close business ties in Australia’.  There is no evidence before the Tribunal that the visa applicant had either close personal or cultural ties in Australia during this period.  Accordingly, the Tribunal finds that the visa applicant does not satisfy subclause 850.214(2) and therefore cannot meet subclause 850.214(1).”

5                     The issues before the Tribunal involved questions of fact and their evaluation.  The evidence established that while the applicant was in China he maintained some business ties in Australia but the Tribunal, after evaluating those ties, concluded they were not “close business ties”.

6                     The applicant pointed to evidence that the Tribunal could have acted upon to form a different view.  I accept that it was open to the Tribunal to form a view either way; namely, that the ties were, or were not, close.  It seems to me that no error of law or any other reviewable error has been established by the applicant in relation to the Tribunal’s conclusion, which was essentially a question of fact.  In particular, I am satisfied that it was open to the Tribunal on the material before it to reach the conclusion that it did.

7                     The second issue of fact related to whether the Tribunal was satisfied that compelling or strongly compassionate circumstances existed that explained the applicant's absence from Australia from 1993 to 1996.  It is clear that the two issues on which the present matter turns are cumulative requirements and that both must be found in favour of the applicant.  The Tribunal dealt with this issue in para 24 of its reasons:

“The visa applicant claimed in his submission dated 6 May 1998 that the reason for his departure from Australia in September 1993 was that his mother was very sick and, as a consequence, he had to return to China.  He told the Tribunal that his mother’s health improved approximately one month after his return and she was now in good health.  While the Tribunal accepts that the visa applicant returned to China due to concern about his mother, there is no medical or other evidence before the Tribunal establishing that the visa applicant remained in China for over 3 years because of his mother's health.  Indeed the visa applicant told the Tribunal that a month after he returned to China his mother’s condition improved to the extent that he could commence work in Shanghai and he continued to work throughout the period he was in China.  The Tribunal finds that although ‘compelling or strongly compassionate circumstances’ may have existed at the time the visa applicant left Australia, in the absence of evidence about his mother's medical condition during 1993 to 1996 the Tribunal is unable to find that ‘compelling or strongly compassionate circumstances’ exist which explain why the applicant was outside Australia from September 1993 to November 1996.  “

8                     In written submissions prepared by counsel for the applicant it was contended on behalf of the applicant that the Tribunal failed to have regard to the fact that his mother was looking after his child and that that was one of the circumstances that enabled the applicant to satisfy the criterion in question.  In his submissions before me the applicant indicated that during that period he intended and wished to return to Australia.  He stated that he was not able to do so because he did not have a reason that would support a visa application and it was for that reason that he did not apply to come back to Australia until 1996.  The second issue of fact, relating to the reasons for the applicant’s absence from Australia, is akin to the question of whether “close business, cultural or person ties” had been maintained in that it involves questions of fact and degree and requires an evaluation by the Tribunal, which is the arbiter of fact.

9                     As with the first criterion, I am satisfied that while the Tribunal may have been able to reach a conclusion either way, it was open to it to evaluate the facts as it did and form the view that the applicant did not satisfy the relevant criterion.  I am not satisfied that in arriving at its conclusion the Tribunal failed to have regard to the matters raised by the applicant in his written and oral submissions.  In my view, on a fair reading of its decision, the Tribunal was prepared to accept that the condition of the applicant's mother was a compassionate circumstance that justified his departure from Australia.  It was, however, not satisfied that the other factors relied upon in relation to the period subsequent to the improvement in his mother’s health were compelling or strongly compassionate circumstances that justified or explained his absence from Australia for three years.

10                  I emphasise that in arriving at these conclusions I am not expressing any view on whether I would have reached the same conclusions on the material.  That is not the question before me.  The question on the review, as stated above, is merely whether it was open to the Tribunal to make the finding it did, and whether the Tribunal’s decision involved any error of law or any other reviewable error.

11                  As I am not satisfied that there was any such error it must follow that the challenge on this ground must also fail.  Accordingly, the applicant's application for review is to be dismissed.

Associate:

Dated:              9 July 2001