Federal Court of Australia

Dai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 556

ORDERS

THE COURT ORDERS THAT:

1.    The title of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant is to pay the first respondent’s costs of the appeal to be taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    Mr Hongbiao Dai seeks to appeal from a decision of the then Federal Circuit Court of Australia (the Federal Circuit Court) dated 23 October 2020 which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 7 November 2018. By that decision, the Tribunal affirmed a decision of the Minister’s delegate to refuse his application for a Partner (Temporary) (Class UK) visa.

2    For the reasons set out below, the appeal should be dismissed.

Background

3    Mr Dai is a 55-year old citizen of China. He first arrived in Australia on 21 March 1998 on a Tourist visa (subclass 676), using a passport in a different name. That visa ceased on 10 February 1999. Mr Dai has not held a substantive visa since that time, although he has held bridging visas for some of the time that he has been in Australia.

4    Mr Dai subsequently made an application for a protection visa, which was refused by the Department of Home Affairs. Upon review by the Refugee Review Tribunal, that refusal was affirmed. Mr Dai then applied for Ministerial intervention, which was also refused.

5    On 15 January 2015, Mr Dai made an application to the Department of Immigration and Border Protection (the Department) for a Partner (Temporary) (Class UK) (subclass 820) visa on the basis of his relationship with his sponsor. He claimed that the parties met in 2011 and began a de facto relationship in 2014. The relationship was registered on 13 February 2015.

6    At the time of making that application, cl 820.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) was a primary criterion to be satisfied for the grant of a subclass 820 visa. That clause relevantly provided that, where the applicant was not the holder of a substantive visa, they were required to satisfy certain Schedule 3 criteria, “unless the Minister is satisfied that there are compelling reasons for not applying those criteria”.

7    By a letter dated 5 February 2015, the Department invited Mr Dai to comment upon whether there were compelling reasons to not apply the Schedule 3 criteria. As the letter stated, the Regulations did not prescribe the circumstances that needed to be considered when assessing whether or not compelling reasons exist to not apply Schedule 3 criteria.

8    Mr Dai provided a number of supporting documents on 4 March 2015, including evidence of his sponsor’s medical condition, a relationship certificate and evidence of mail addressed to Mr Dai at the same address as his sponsor.

9    On 9 June 2017, a delegate of the Minister refused to grant the visa on the basis that Mr Dai did not satisfy cl 820.211(2)(d) of the Regulations. The delegate found that he did not meet the Schedule 3 criteria — namely, criterion 3001 which required his application to be made within 28 days after his substantive visa ceased — and that there were no compelling reasons not to apply the Schedule 3 criteria.

10    Mr Dai applied to the Tribunal for a review of the delegate’s decision on 23 June 2017. On 7 November 2018, the Tribunal affirmed the delegate’s decision not to grant the visa.

11    Mr Dai applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 4 December 2018. On 23 October 2020, the primary judge dismissed the application for review, holding that Mr Dai had failed to establish jurisdictional error on the part of the Tribunal.

12    Mr Dai now seeks to appeal from the primary judge’s decision. Before addressing the appeal before this Court, it is useful to briefly set out the Tribunal’s decision.

The Tribunal’s decision

13    The hearing before the Tribunal took place on 6 November 2018. Mr Dai gave evidence at that hearing, and was assisted by an interpreter. His sponsor was requested to attend at the hearing, but she did not do so. The Tribunal published its reasons the following day.

14    The Tribunal’s reasons commenced with a comprehensive consideration of Mr Dai’s migration history. The Tribunal also noted the circumstances of his sponsor, and the fact that she held a Subclass 100 Partner (Residence) visa.

15    It was not in dispute that Mr Dai did not hold a substantive visa at the time of making his application for the partner visa. As the Tribunal observed, Mr Dai last held a substantive visa in 1999, being six years prior to the making of his application. As a result, it was concluded that he did not satisfy criterion 3001. The only issue before the Tribunal was, therefore, whether there were compelling reasons to waive the Schedule 3 criteria.

16    In brief, Mr Dai claimed that his sponsor was dependent on him for support, that the parties were in a long-standing relationship, and that he ought to be allowed to stay in Australia given the amount of time that he had spent in the country.

17    The Tribunal concluded that none of the circumstances of Mr Dai or the sponsor, either individually or cumulatively, nor any of the claims made, provided a compelling reason for not applying the Schedule 3 criteria.

18    The reasoning of the Tribunal in this respect was carefully analysed and summarised at [11] – [18] of the primary judge’s reasons. That summary is gratefully adopted and extracted below:

11.     The Tribunal found that the applicant had shown complete disregard for Australia’s immigration laws. The statement provided by the applicant indicated that he came to Australia to find employment, indicating that he had no intention to remain temporarily in Australia when he applied for his initial Visitor’s visa. The Tribunal also found that the subsequent application for a Protection visa was not based on any valid claim that the applicant faced persecution or harm in China.

12.     The Tribunal noted that the applicant’s parents, sisters and son from a previous relationship all reside in China and do not have any difficulties with Chinese authorities. The Tribunal concluded that there were no circumstances in China which would prevent the applicant from returning to China to file an offshore Partner visa application. Accordingly, the circumstances that the applicant faced in China did not provide compelling reasons not to apply the Schedule 3 criteria.

13.     The Tribunal did not make any critical assessment of whether the parties’ were in and continue to be in, a genuine and continuing exclusive relationship and accepted this at face value.

14.     The Tribunal however, expressed significant concerns as to whether the relationship was genuine and this was relevant to its consideration of whether the particular circumstances of the relationship itself, might be a compelling reason for waiver. The Tribunal noted at paragraph 46 of its decision that the applicant provided no evidence that he was currently living with the sponsor, was unaware of significant events in the sponsor’s life including overseas travel, and that the sponsor had not attended the Tribunal hearing.

15.     The Tribunal did not accept that the applicant and sponsor started living together in a de facto relationship in September 2014. The Tribunal noted inconsistencies in the applicant’s claims in terms of his relationship with the sponsor as compared to her travel and his travel history. The Tribunal noted that no convincing evidence was provided, which indicated that the parties lived together.

16.     The Tribunal considered information that the sponsor had suffered from a medical condition, however the evidence provided, indicated that the sponsor was successfully treated for the condition and that it did not adversely affect her in any way. There was no evidence before the Tribunal that the sponsor was dependent upon the applicant for any health reasons.

17.     The Tribunal concluded, that the sponsor was not dependent on the applicant. This was evidenced by the applicant’s unawareness of what the sponsor did when she travelled for work, that the sponsor worked for a travel agency and was therefore not financially dependent on the applicant, and that it is not apparent that the sponsor relied on the applicant for emotional and other support.

18.     The Tribunal was not satisfied that there were any circumstances of the claimed relationship that provided a compelling reason not to apply the Schedule 3 criteria. The Tribunal did not accept that the sponsor failed to attend the hearing because she was concerned that the applicant may not be granted the visa. The Tribunal concluded that there were no compelling reasons to not apply the Schedule 3 criteria, and accordingly, the applicant did not meet cl 820.211(2)(d)(ii) of the Regulations. There was also nothing before the Tribunal to indicate that the applicant would meet any of the alternative criteria in cl 820.211 of the Regulations. Accordingly, the Tribunal affirmed the delegate’s decision.

The Federal Circuit Court’s decision

19    Before the Federal Circuit Court, Mr Dai raised five grounds of review. They were as follows:

(a)    “The first respondent [being the Minister] and the second respondent [being the Tribunal] both have not executed the discretion of schedule 3 assessment; they have not taken all the facts and medical conditions into consideration to make fair decision.”

(b)    “The first respondent weighted too much of the applicant’s migration history which has been declared in the application itself to the first respondent.”

(c)    “The second respondent has not considered all the relationship evidence provided and the absence of hearing is not crucial to determine the genuine relationship.”

(d)    “The applicant’s migration history is main concern to the first and second respondents, therefore, the first and second respondents did not fairly assess the application, and the bias is very obvious in this application.”

(e)    “The first and second respondents did not consider the possible damage will be occurred if the applicant leaves the sponsor.”

20    As mentioned, Mr Dai’s application for judicial review was dismissed. The primary judge held (at [40]) that Mr Dai had failed to establish jurisdictional error on the part of the Tribunal. His Honour was also satisfied (at [41]) that there were no jurisdictional errors apparent on the face of the record which had not been articulated by Mr Dai.

The appeal to this Court

21    On 22 May 2024, when the matter was listed for hearing in this Court and when the matter was called on, Mr Dai failed to appear. The matter was called outside of the Court and no appearance followed. Ms Warner Knight, the solicitor for the Minister, asked the Court to dismiss the appeal pursuant to r 36.75 of the Federal Court Rules 2011 (Cth). That rule provides as follows:

36.75    Absence of party

(1)     If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)     if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)     the hearing be adjourned; or

(iii)     the hearing proceed only if specified steps are taken; or

…

22    Ms Warner Knight very appropriately tendered a letter sent by the Australian Government Solicitor on behalf of the Minister to Mr Dai on 24 April 2024. The letter was sent by express post and also by email. It, relevantly, gave Mr Dai notice of the date, time and location of the hearing and noted that a failure to appear may result in the dismissal of the appeal without further notice.

23    In the circumstances, the absence of Mr Dai when the matter was called on — after appropriate notice of the hearing had been given — is sufficient to warrant dismissing the appeal. Nevertheless, the Minister filed written submissions which sought to address the perceived concerns behind each of the grounds of the appeal raised by Mr Dai, and it is not inappropriate to consider them in that context.

Consideration of the grounds of appeal

24    The notice of appeal filed in this Court repeats, verbatim, the five grounds of review advanced before the primary judge.

25    To the extent that certain of the grounds seek to raise errors by the delegate of the Minister, the Court does not have jurisdiction to review errors made by the delegate. It is also well established that this Court has no authority to review the Tribunal’s findings of fact in order to determine, in effect, whether it would have made different findings in the circumstances. This Court is, in the present circumstances, only able to consider grounds of appeal that relate to an alleged jurisdictional error in the Tribunal’s decision, and a corresponding error in the decision of the primary judge.

26    However, given that Mr Dai was self-represented, it will be assumed in his favour that the intended complaints are that the primary judge erred by failing to find that the grounds of review had been made out.

27    It ought to be observed at the outset that the grounds of appeal contain no more than undetailed assertions of error. Mr Dai did not put on any written submissions in support of his appeal, despite having had the opportunity to do so. The material before the Court accordingly lacks meaningful particularisation — a failure to particularise a ground of review is itself a sufficient basis upon which to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 [37].

28    In any event, a review of the Tribunal’s reasons shows that it carefully considered the evidence and Mr Dai’s claims. The principal question was whether the Tribunal should be satisfied that compelling reasons existed not to apply the Schedule 3 criteria. That question involved an evaluative judgment by the Tribunal as to whether it was satisfied that compelling reasons existed: see Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59, 61 – 62 [8]; MZYPZ v Minister for Immigration & Citizenship (2012) 127 ALD 510, 512 [10].

29    If jurisdictional error is to be found, it must be found in the process by which a state of satisfaction is reached rather than in the correctness of the opinion arrived at.

30    The primary judge found that the Tribunal correctly instructed itself as to the meaning of “compelling reasons”. His Honour held that the material, including Mr Dai’s written and oral evidence, did not justify a waiver of the Schedule 3 criteria. The matters which the Tribunal took into account, including Mr Dai’s migration history and that he had shown disregard for the relevant immigration laws, were matters which it was entitled to take into account. Even putting those matters aside, as the primary judge observed, none of the information put forward by Mr Dai was sufficient, in the Tribunal’s view, to support a finding that there were compelling reasons to waive compliance with the Schedule 3 criteria.

31    As the below discussion reveals, the primary judge did not err in concluding that the alleged jurisdictional errors were not committed by the Tribunal.

Ground one

32    The first contention is that the Tribunal failed to take “all the facts and medical conditions into consideration to make [a] fair decision”. This ground appears to be directed to the information put before the Tribunal that Mr Dai’s sponsor had suffered from a medical condition and was dependent upon him for support.

33    However, it is evident that the Tribunal expressly considered the information provided by the applicant in relation to the fact that his sponsor suffered from human papillomavirus in 2014. As stated by the primary judge (at [16], [40]), the evidence indicated that the sponsor was successfully treated at that time, and that the condition did not adversely affect her in any way. There was no information before the Tribunal that the sponsor was dependent upon Mr Dai — indeed, the evidence suggested the opposite, in that she travelled regularly without him as part of her work.

34    The primary judge did not err in rejecting ground one.

Ground two

35    The second ground of appeal asserts that the delegate placed too much weight on Mr Dai’s migration history. To the extent that this ground of appeal might concern the reasoning of the Tribunal, it calls into question the findings that Mr Dai had shown complete disregard for Australia’s immigration laws, and that his application for a protection visa was not based on any valid claim that he faced persecution or harm in China.

36    It was open to the Tribunal to find that Mr Dai had no genuine basis for making his protection visa application and this was relevant to its consideration of whether there were “compelling reasons”, in particular, its finding that the applicant had no reason to fear return to China. In the evaluative judgment to be made, the Tribunal was entitled to consider a single circumstance or a multitude of circumstances.

37    The primary judge did not err in finding that no jurisdictional error was established by ground two.

Ground three

38    By ground three of the notice of appeal, it is complained, in part, that the Tribunal did not consider all the relationship evidence provided. The second part of the ground, expressed as “absence of hearing is not crucial to determine the genuine relationship”, seems to suggest that the Tribunal should not have had regard to the sponsor’s failure to attend or give evidence at the hearing in considering whether the relationship was genuine.

39    However, such a complaint appears to misunderstand the Tribunal’s reasoning. The Tribunal referred, at [54] of its reasons, to the sponsor’s failure to appear at the hearing as a factor which suggested her lack of interest in the matter, but apart from expressing a doubt that the relationship was genuine, it made no such finding.

40    Otherwise, to the extent that ground 3 complains that that the primary judge erred by failing to find that the Tribunal failed to take into account all the evidence of the relationship which demonstrated that it was genuine, Mr Dai has not identified any evidence to which the Tribunal failed to have regard or take into account.

41    No jurisdictional error in the Tribunal’s reasons arises from ground three, and the primary judge did not err in this respect.

Ground four

42    The fourth ground of appeal contends that the Tribunal wrongly focused on Mr Dai’s migration history, giving rise to a claim of bias.

43    This claim is wholly unsubstantiated. The Tribunal was entitled to consider Mr Dai’s migration history, and it was relevant to its consideration of whether there were compelling reasons. As the primary judge held, a claim of bias is serious and requires evidence. The Tribunal’s reasons evidence a discussion of the various relevant criteria and the arriving at of a decision that there were no compelling reasons. As the primary judge found (at [40]), that conclusion was fair, in that it was open to the Tribunal, on the evidence before it.

44    The primary judge was correct to find that the allegation of bias was without substance.

Ground five

45    Mr Dai’s final contention is that the Tribunal failed to take into account that “possible damage will be occurred if the applicant leaves the sponsor”. To the contrary, the Tribunal made an express finding that the sponsor and applicant led quite separate lives. There was insufficient evidence to indicate that if the applicant and the sponsor were required to separate, in order for him to return to China to make an offshore Partner visa application, that their relationship might be jeopardised or that the sponsor might suffer undue hardship.

46    The primary judge did not err in rejecting ground five for the reasons that he gave.

Conclusion

47    It follows that there was no error in the decision of the Tribunal, or in the decision of the primary judge. The appeal should be dismissed with costs.

Associate:    

Dated:    24 May 2024