FEDERAL OF AUSTRALIA Tao v Minister for Immigration and Border Protection [2017] FCA 487 Appeal from: Application for extension of time and leave to appeal: Tao & Anor v Minister for Immigration & Anor [2016] FCCA 2669 File number: NSD 1905 of 2016 Judge: BURLEY J Date of judgment: 12 May 2017 Catchwords: MIGRATION – application for Partner (Temporary) (Class UK) visa – whether Administrative Appeals Tribunal erred in making its decision – whether Federal Circuit Court of Australia exceeded its powers in dismissing the application under Federal Circuit Court Rules 2001 (Cth) r 44.12 PRACTICE AND PROCEDURE – application for extension of time and leave to appeal Legislation: Migration Act 1958 (Cth) ss 5F, 359A, 375A Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court Rules 2011 (Cth) r 35.13 Migration Regulations 1994 (Cth) Schedule 2 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 Tao & Anor v Minister for Immigration & Anor [2016] FCCA 2669 Date of hearing: 2 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the Applicants: The First Applicant appeared on behalf of the Applicants Counsel for the First Respondent: Ms A Mitchelmore Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 1905 of 2016 BETWEEN: MEIYING TAO First Applicant JIAYING HU Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BURLEY J DATE OF ORDER: 12 MAY 2017 THE COURT ORDERS THAT: 1. The application for an extension of time for filing the notice of appeal be allowed. 2. The application for leave to appeal be dismissed. 3. The applicants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 BACKGROUND [1] 2 THE DECISION OF THE TRIBUNAL [8] 3 THE FCCA DECISION [17] 4 THE PRESENT APPLICATION [20] 5 DISPOSITION [33] BURLEY J: 1. BACKGROUND 1 The two applicants are mother and daughter and are citizens of China. The first applicant arrived in Australia on a visitor visa which expired on 27 April 2013. Her daughter, the second applicant, arrived in Australia on a student visa on 27 November 2011. On 21 May 2013, the first applicant applied for a Partner (Temporary) (Class UK) visa, with the second applicant applying for the same class of visa on the basis that she was a member of the first applicant's family unit. The application was sponsored by Mr Lau, whom the first applicant married on 9 April 2013. 2 The present application seeks an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) given on 14 October 2016, dismissing an application for a review of a decision of the second respondent (Tribunal). The decision of the primary judge is reported at Tao & Anor v Minister for Immigration & Anor [2016] FCCA 2669. The application for review was dismissed by the primary judge under Federal Circuit Court Rules 2001 (Cth) (FCC Rules) r 44.12 on the basis that the Court was satisfied that the applicants had failed to disclose an arguable case for the relief claimed. 3 The application before the Tribunal arose from a decision made on 10 October 2014 by a delegate of the first respondent (Minister), who refused to grant the visa on the basis that the applicant failed to satisfy cl 820.211 of Schedule 2 of the Migration Regulations 1994 (Cth). In short, the delegate was not satisfied that there was sufficient evidence upon which to conclude that the first applicant was ever in a genuine spousal relationship with Mr Lau, that being an essential component of the definition of "spouse" in s 5F of the Migration Act 1958 (Cth) (Act). As the second applicant applied as a member of the family unit, her visa application was also refused. 4 The applicants filed the present application on 2 November 2016. As the decision of the primary judge under FCC Rules r 44.12 is interlocutory (see r 44.12(2)), the applicants require leave to appeal. The application for leave was filed seven (7) days outside the 14 day time limit prescribed by r 35.13(a) of the Federal Court Rules 2011 (Cth). 5 The applicants rely in support of their application upon an affidavit made by the first applicant, in which she explains that she was mistaken as to the required time for filing an application for leave to appeal to this Court and erroneously considered that such an application could be filed within 21 days of the decision of the primary judge. Annexed to the application for leave is a draft notice of appeal which contains the following proposed grounds of appeal (grounds): 1. The Federal Circuit Court made an error in making the decision. 2. The Appellant did not [receive] a full hearing [from] the Federal Circuit Court but [the application was] dismissed under R.44.12 of the Federal Circuit Court Rules 2001 and this is unfair to the appellant. 6 The Minister does not oppose the extension of time. However, he contends that on the basis of the pleaded grounds, the Court would not be satisfied that in all of the circumstances of the case the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Court or that substantial injustice would result if leave were refused, supposing the decision to be wrong. 7 For the reasons set out below, I allow the application for an extension of time in which to file the notice of appeal, but dismiss the application for leave to appeal. 2. THE DECISION OF THE TRIBUNAL 8 The applicants appeared before the Tribunal on 8 January 2016 and 17 May 2016 to give evidence and present arguments. The Tribunal received oral evidence from four additional people, who supported the application. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Ms Tao was represented by a registered migration agent on the 8 January 2016 hearing and Mr David Prince, a solicitor, on the 17 May 2016 hearing. 9 In addition to the above evidence, the Tribunal had before it a confidential letter which contained allegations to the effect that the first applicant had entered into a contrived relationship with Mr Lau and that she had met Mr Lau only shortly before she and he were married (s 375A Letter). It is unnecessary to refer to other allegations made. A certificate was provided pursuant to s 375A of the Act to the effect that it would be contrary to the public interest to disclose the contents of the s 375A Letter and, as a result, the Tribunal must do all things necessary to ensure that the document, or the information contained in it, is not disclosed to any person other than a member of the Tribunal constituted for the purpose of the particular review. 10 The Tribunal provided the applicants' representatives with the s 375A certificate on 8 February 2016. 11 The Tribunal identified that there were three issues relevant in its consideration of the present case; whether the first applicant and Mr Lau were in a spousal relationship at the time of the visa application in accordance with cl 820.211(2)(a); whether there are compelling reasons not to apply the Schedule 3 criteria in accordance with cl 820.211(2)(d) and; whether the first applicant has suffered family violence committed by the sponsor within cl 820.221(3). 12 In considering the first of these questions (whether the parties were in a spousal relationship at the time of the visa application) the Tribunal expressed grave concerns about the credibility of the first applicant's evidence. The Tribunal noted that the first applicant and Mr Lau had provided statements to the Department that they had met at a party in July 2012 but that they originally claimed that they formed a relationship in September 2012. They provided information to the Department that the relationship continued after the first applicant returned to China on 26 September 2012. On 20 January 2016 the Tribunal wrote to the first applicant under s 359A of the Act, inviting her to comment on or respond to the allegations contained in the s 375A Letter, as well as Mr Lau's movement records which were provided by the Department. The s 375A Letter indicated that the first applicant and Mr Lau commenced co-habiting on 9 February 2013. 13 When confronted with this information, the first applicant significantly changed her evidence. 14 The Tribunal decision records at [53]: Ms Tao now claims that she first met Mr Lau in February 2013 and she first started living with him following their marriage in April 2013. She now claims that she [and] Mr Lau met through a Chinese online dating service through QQ and that Mr Lau proposed to her a few days later on a bus trip to Canberra. Ms Tao now claims that the information about the history of the relationship contained in her statement provided to the department was essentially made up by her migration agent at the time Amy Lee. Ms Tao understood that in order to have the 8503 visa condition waived she needed to have evidence of a long standing relationship. There is no suggestion claimed that Ms Tao was unaware of the contents of the various statements. The tribunal understand[s] that Ms Tao went along with Amy Lee's suggestion so as to maximise her chance of having the 8503 condition waived and presumably assist with the substantive visa application. Significantly the visa application includes statutory declarations completed by Mr Lau's father Wan Lau and friend Raymond Yau in May 2013 both claiming that they had met Ms Tao the previous year. This of course is not possible given the fact that it is now known that Ms Tao and Mr Lau first met each other earlier in 2013. The provision of statutory declarations that contain blatantly false information clearly is of concern. 15 This change of position, coupled with several other aspects of the first applicant's evidence when considered in the totality with other evidence led the Tribunal to conclude that there was not ever a genuine spousal relationship between Mr Lau and the first applicant. The Tribunal formed the view that the first applicant's evidence is flexible according to the circumstances and that she is prepared to tell a decision maker whatever she thinks the decision maker wants to hear. 16 In the conclusion, whilst the Tribunal accepted that Mr Lau and the first applicant were legally married at a migration agent's office in April 2013, it did not accept that at the time of the visa application there existed a genuine spousal relationship. Accordingly, the Tribunal concluded that it was not necessary to decide the remaining issues. 3. THE FCCA DECISION 17 A hearing was conducted in the FCCA on 14 October 2016. The applicants appeared in person, apparently with the assistance of an interpreter. The sole ground of the application to the FCCA was: Administrative Appeals Tribunal made an error in making the decision. 18 The primary judge explained to the applicants that the hearing was a show cause hearing under FCC Rules r 44.12. The primary judge explained that a show cause hearing required the Court to be satisfied that the applicants had an arguable case that the Tribunal's decision was affected by relevant legal error. His Honour explained that the relevant legal error had to be either in excess of statutory power or a denial of procedural fairness to the applicants. The Court explained, in summary, that this meant it was considering whether the applicants had a reasonably arguable case that the Tribunal's decision was unlawful or that the Tribunal's decision was unfair. The primary judge recorded that the first applicant, who appeared on behalf of both of the applicants, confirmed that she understood the nature of the hearing. 19 The primary judge records that the applicants did not advance any submissions in relation to the sole ground of the application. The primary judge recorded, in very briefly expressed reasons, that the assertion that the Tribunal had made an error in making its decision does not disclose any arguable jurisdictional error. On the face of the material before the Court, the primary judge concluded that the Tribunal had complied with its statutory obligations in the conduct of the review. In the result, the primary judge concluded that he was clearly satisfied that it was an appropriate case in which to exercise the Court's power to dismiss the application under r 44.12 of the FCC Rules. 4. THE PRESENT APPLICATION 20 The present applications are for an extension of time and leave to appeal from the primary judge's decision. The latter requires the Court to be satisfied that in all of the circumstances of the case, the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by this Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 – 400. 21 In the present case, the focus is aptly on the first element of this test. 22 The applicants were self-represented at the hearing and the first applicant appeared at the bar table, assisted by the services of an interpreter from the English language to Mandarin. She advanced no oral or written submissions in support of the application. 23 Ground 1 of the draft Notice of Appeal is "the Federal Circuit Court made an error in making the decision". No particulars were provided of the ground. For present purposes I shall assume, in favour of the applicants, that it is directed towards the FCCA failing to detect a relevant error made by the Tribunal in the conduct of its consideration of the applicants' application. 24 In this respect, it is apparent that over two days of hearing the Tribunal gave the applicants an opportunity to be heard. On 20 January 2016, the Tribunal provided notice to the applicants of additional materials that had come to its attention following the first day of hearing, including the substance of the s 375A Letter. A copy of the s 375A certificate was provided to the applicants. 25 Counsel for the respondent, Ms Mitchelmore, properly drew attention to the fact that the appropriateness of the Tribunal relying on communications which had been the subject of a s 375A certificate was considered in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305. In that decision, a Full Court of the Federal Court found that the Tribunal was required to disclose the existence of the certificate to the appellant. As the Minister submits, the decision in that case may be distinguished from the present on the basis that here the s 375A certificate has been provided to the applicants. 26 Further, it is apparent that the Tribunal was careful not to rely on the contents of the s 375A Letter in formulating its conclusions. At [51] it said: The tribunal observes that little, if any, weight can be given to mere allegations of a contrived relationship. A person can make an allegation for a variety of reasons. However the allegations provided specific detail concerning the history of the relationship and Ms Tao's [the first applicant] circumstances that were clearly in conflict with Ms Tao's evidence. 27 The content of the s 375A Letter prompted inquiries from the Tribunal that lead ultimately to the change of position set out in the Tribunal's reasons at [53], which is quoted above at [14]. The decision of the primary judge appears not to have improperly taken into consideration any of these matters. No submission was put, or ground pleaded, that suggests the contrary. In any event, in my view, the decision in Singh is distinguished from the present case on its facts. In my view, no other matters arising from the materials suggest, or give rise to, a concern that the hearing was conducted in a manner that might reflect relevant legal error. 28 Accordingly, I am not satisfied that ground 1 is attended by sufficient doubt to warrant it being considered by the Court. 29 Ground 2 of the draft notice of appeal is: The Appellant did not [receive] a full hearing [from] the Federal Circuit Court but [the application was] dismissed under R.44.12 of the Federal Circuit Court Rules 2001 and this is unfair to the appellant. 30 Rule 44.12 of the FCC Rules permits a hearing of the type conducted by the FCCA. The rule includes "a power to give judgment in favour of an applicant immediately, as well as against an applicant"; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 (Shrestha) at [65]. That power is, of course, constrained by the obligation on the part of the Court to act in accordance with the rules of procedural fairness; Shrestha at [52]. 31 The applicants have not provided any basis upon which it is said that the FCCA exceeded the limit of the powers provided under FCC Rule r 44.12. To the extent that a possible basis arises, that has been considered under ground 1 and rejected. 32 Accordingly, ground 2 of the draft notice of appeal is not sustainable. 5. DISPOSITION 33 On the basis of the findings set out above, the application for an extension of time within which to appeal should be allowed, but the application for leave to appeal should be refused. The applicants should pay the first respondent's costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 12 May 2017