Abdul v Minister for Immigration
[2005] FMCA 1691
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABDUL v MINISTER FOR IMMIGRATION | [2005] FMCA 1691 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Prospective Marriage (Temporary) (Class TO) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.116(1)(a), 474, 483A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2 Subcls 300.214, 300.215, 300.216, 300.221
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Sandoval v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1237
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | RAUF ABDUL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3200 of 2004 |
| Delivered on: | 22 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3200 of 2004
| RAUF ABDUL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 28 October 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on
1 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 4 May 2004 to cancel a Prospective Marriage (Temporary) (Class TO) visa held by Mr Rauf Abdul. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
The applicant is a national of Fiji and was born on 15 July 1970. He arrived in Australia on 2 January 2004 as the holder of a Prospective Marriage (Temporary) (Class TO) visa. Condition 8519 was attached to the visa:
8519The holder must enter into the marriage in relation to which the visa was granted within the visa period of the visa
On 27 February 2004 the sponsor informed the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) by letter that she had married the applicant in a religious ceremony on 9 January 2004. The sponsor alleged that after the religious ceremony she found the applicant was impotent. The couple separated on
27 January 2004. The sponsor advised the Department that she did not want the applicant to remain in Australia and that they were not legally married (Court Book p.65) (“CB”).
On 15 April 2004 the applicant was issued with a written notice of intention to cancel the visa which stated that the applicant was no longer in a spousal relationship with the sponsor (CB pp.30-32). The applicant responded to that notice on 2 May 2004 and provided details of how his relationship with the sponsor came about, the circumstances of their marriage and its subsequent demise (CB pp.33-34). On 4 May 2004 the delegate proceeded to cancel the applicant’s visa on the ground that the relationship between the applicant and the sponsor had broken down and no legal marriage took place between the parties (CB pp.35-39). On 20 May 2004 the applicant lodged an application with the Tribunal (CB pp.40-46).
A Tribunal hearing was held on 10 September 2004. The applicant and his sister, Ms Shabham Nisha gave evidence. The applicant’s evidence is that he went through a religious ceremony with the sponsor on
9 January 2004. They did not legally marry. They separated on
27 January 2004. They never resumed cohabitation. The sponsor’s family approached him to arrange for the couple to marry. It was not his fault that the marriage did not proceed. He left a good job in Fiji. He had held the job for 14 years. He will not be able to return to his former employment. He cashed in his provident fund. He borrowed a total of $7,000 to help pay for the wedding festivities. He still owes $5,000. His family in Fiji are still relying on his support. He has always obeyed immigration law. The circumstances of the breakdown of the relationship have caused him upset, embarrassment and disappointment. Ms Nisha’s evidence confirmed the applicant’s evidence (CB p.66).
The Tribunal’s findings and reasons
The grounds for cancellation are set out in the findings and reasons of the Tribunal’s decision at paragraphs 16-19 and I adopt those paragraphs for the purpose of this judgment:
[16]The matter before the Tribunal is the decision to cancel the review applicant’s visa. This decision was made in exercise of the power to cancel visas under section 116 of the Act. The delegate in this case, in arriving at a decision to cancel the visa, relied on the grounds provided by section 116(1)(a). The relevant parts of section 116 in force at the time of the cancellation decision are set out below.
[17]Section 116(1)(a) provides that cancellation may occur if ‘any circumstances which permitted the grant of the visa no longer exist’. In reviewing cancellation decisions under section 116(1)(a) of the Act, the Tribunal must identify precisely the circumstances which formed a basis for the grant, consider whether those circumstances have changed and then decide whether to cancel the visa. The proper construction of section 116(1)(a) of the Act was discussed in detail by the Full Federal Court in Zhang [1999] FCA 84 (12 February 1999). The Court found that section 116(1)(a) of the Act was concerned with a material change in circumstances. It is not concerned with circumstances which have turned out to have never existed.
[18]The circumstances which permitted the grant of the visa were that the review applicant was to come to Australia to marry the sponsor within 9 months of entry and to then live with her as her spouse. The review applicant was to enter into a marriage with the sponsor prior to 8 September 2004. It is the evidence of the review applicant that he did not legally marry the sponsor and the relationship between the review applicant and the sponsor has broken down. The Tribunal finds that the circumstances which permitted the grant of visa no longer exist. The visa is therefore subject to cancellation.
[19]Section 116(1) provides that “the Minister may cancel a visa” if he or she is satisfied of any of the grounds in section 116(1). The Tribunal is not obliged to cancel the visa, even though the Tribunal is satisfied that a ground for cancellation under section 116 has been made out. The Tribunal must exercise its discretion in determining whether the visa should be cancelled. In exercising its discretion, the Tribunal will consider all relevant circumstances before reaching a decision whether cancelling the visa is the correct or preferable decision.
The Tribunal having reached the finding that the circumstances which permitted the grant of a visa no longer existed, found it was therefore subject to cancellation under s.116(1)(a) of the Act. It did however have a discretion to determine whether the visa should be cancelled and it assessed the applicant against the policy guidelines in Migration Series Instructions (MSI) 368 paragraph 17.2. Having considered each of those matters, the Tribunal decided to affirm the cancellation decision.
Application for review of the Tribunal’s decision
On 28 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
(a)Exceeded jurisdiction and denied procedural fairness in making the decision to affirm the Respondent’s decision not to grant the Applicant a Prospective Marriage (Temporary) (Class TO) visa; and
(b)Erred in law in a way amounting to jurisdictional error in arriving at the decision to affirm the Respondent’s decision not to grant the Applicant a Prospective Marriage (Temporary) (Class TO) visa (Errors included)
There was no particularisation of either of these grounds.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Reasons
The applicant appeared self represented with the aid of an interpreter. The applicant was represented at the directions hearing before Registrar McIllhatton on 19 November 2004 when Short Minutes of Order were made requiring the applicant file and serve an amended application together with any evidence upon which the applicant proposed to rely at the hearing. This direction was not complied with by the applicant nor was any written submission filed and served prior to the hearing. The applicant was invited to make oral submissions from the bar table which was limited to the making of a request for further time in order to arrange for someone to represent him at the hearing. The applicant had a period of one year in which to prepare for the hearing however he does not appear to have taken any steps in preparation for the final hearing of his matter. The request for further adjournment of the proceedings was declined.
The nature and function of the hearing was briefly explained to the applicant and he was extended the opportunity to bring any other issues before the Court. The applicant made brief submissions which involved a review of the facts of his situation and was, in effect, a request for a merits review. The applicant’s real complaint was that he disagrees with the Tribunal’s conclusion and all of his arguments amounted to a request to set aside the decision of the Tribunal on the merits. Merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang.
The applicant was granted a visa for the expressed purpose of enabling him to come to Australia to marry his sponsor. He entered Australia on 2 January 2004 on a Prospective Marriage (Temporary) (Class TO) visa to which Condition 8519 was attached. The couple went through a religious ceremony on 9 January 2004 which was conducted in accordance with the Muslim faith to which the couple were adherents. The ceremony did not include any formal marriage ceremony recognised by the Australian authorities as complying with the requirements of the marriage legislation within Australia. On
27 February 2004 the sponsor informed the Department by letter that they had gone through a religious ceremony on 9 January 2004 but had subsequently separated on 27 January 2004. As the anticipated marriage did not happen, the power to cancel the visa under s.116(1)(a) was enlivened. The power to cancel a visa under s.116(1) is discretionary: Sandoval v Minister for Immigration & Multicultural & Indigenous Affairs per Gray J at [60]-[65].
There is no regulatory provisions in relation to the exercise of discretion under s.116(1) and the decision maker had regard to the policy guidelines contained in MSI 368 paragraph 17.2. The Tribunal reproduced the relevant guidelines in its decision and then assessed each of the guidelines to the facts of this matter. The issues are straightforward except in respect of any hardship which may be caused to the visa holder and any family members. The applicant submitted that the cancellation of his visa would cause him and his family a great deal of hardship; he had resigned from his position as a manager in Fiji and he stated he would not be able to return to that position. He claimed he had had to borrow money to help pay for the wedding ceremony which took place on 9 January 2004. The applicant stated he was obliged to borrow an amount of $7,000 and still owed $5,000 at the time of the hearing on 10 September 2004. He stated that his ability to repay this money was further complicated because he was remitting money to his family in Fiji for his contribution to their maintenance. The decision maker acknowledged the extent of this hardship but was influenced by the fact that the visa had not been with any contemplation of the applicant’s obligation or responsibilities to assist family members remaining in Fiji.
The factual material in respect of the applicant and the sponsor make it very clear that they are not married and there is no intention of the sponsor to continue to live with the applicant in a spousal relationship. The Tribunal in its decision quite clearly set out each element to be considered in the exercise of its discretion. The conclusion of that deliberation is set out in paragraph 22 of the Tribunal’s decision as follows:
[22]When the Tribunal considers the matters relevant to the exercise of its discretion it reaches the conclusion that the delegate’s decision should be affirmed. The visa was granted to allow the review applicant to enter Australia, marry the sponsor within
9 months and to enter into a spousal relationship with her. The marriage did not occur and the relationship did not commence. Although the review applicant may have incurred some debt, left his former employment and have suffered embarrassment, the Tribunal finds that these circumstances do not warrant the setting aside of the cancellation.The provisions with respect to the grant of a visa for a prospective marriage are set out in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) in subclass 300 and in particular the following sub regulations:
300.214The parties have met and are known to each other personally.
300.215The applicant establishes:
(a)that the parties genuinely intend to marry; and
(b)that the marriage is intended by the parties to take place within the visa period.
300.216The Minister is satisfied that the parties genuinely intend to live together as spouses.
300.221The applicant continues to satisfy the criteria in clause 300.211 and clauses 300.214 to 300.216.
These issues were not specifically mentioned in the Tribunal’s decision however there is nothing in the decision that is contrary to these sub regulations leading to any form of error.
Where an applicant is self represented, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The applicant in these proceedings quite clearly had no comprehension of the nature of the proceedings before this Court or the aspects that were required in his pleadings and submissions to present his case. In order to fulfil my obligation I have re-read the Tribunal decision together with the accompanying material provided in the Court Book and I am satisfied on that material there is no evidence of jurisdictional error.
I acknowledge that the applicant has suffered embarrassment, financial hardship and inconvenience in surrendering his employment to come to Australia on the understanding he would be entering into a marital relationship on a permanent basis. However, the applicant has demonstrated that he has been able to recover from this set back by forming a new relationship but that does not alter the position in relation to the cancellation of the applicant’s visa.
Conclusion
I have not been able to identify any ground that the Tribunal committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 November 2005
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