Ameen v Minister for Immigration

[2015] FCCA 2240

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMEEN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2240

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Partner (Temporary) (Class UK) Visa – whether applicant had a genuine and continuing relationship with his sponsor – whether applicant was afforded a fair hearing by the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 359A

Applicant: AMEEN AMEEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1350 of 2015

Judgment of: Judge Street

Hearing date: 18 August 2015

Date of Last Submission: 18 August 2015

Delivered at: Sydney

Delivered on: 18 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Sangah
Mills Oakley Lawyers

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1350 of 2015

AMEEN AMEEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal made on 27 April 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) Visa.

2. The applicant came to Australia in 2007 and is a citizen of Pakistan.  The applicant has held a series of student visas.  The applicant met his sponsor in August 2009 and applied for a Partner (Temporary) (Class UK) Visa on 2 August 1022. 

3. On 11 December 2012 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211.  The delegate was not satisfied that the parties were in a de facto relationship.  The delegate noted that the sponsor had departed Australia in 2011 and had not returned by the date of the delegate’s decision.  It was in those circumstances that the delegate found that the applicant did not meet the requirements for the visa. 

4. The applicant lodged an application for review on 24 December 2012. On 20 March 2014 the Tribunal wrote to the applicant identifying clearly particular information within requirements of s.359A of the Act that would be the reason, or part of the reason for affirming the decision under review.

5. The applicant was sent a letter on 26 March 2015 inviting the applicant to attend a hearing on 23 April 2015.  The applicant appeared on that date to give evidence and present arguments about his relationship with the sponsor.  Relevantly, the Tribunal records that the applicant told the Tribunal the relationship had ended in 2012 but he wanted to remain in Australia and continue his studies.

6. The Tribunal put to the applicant that on his own evidence it appeared that the relationship had broken down some time ago and that he could not meet the requirements for the partner visa.  It was in these circumstances that the Tribunal found:

   26. On the evidence before it, the Tribunal considers that the parties have not lived together in the same household since December 2011. Mr Ameen gave evidence that Ms Krakowska terminated the relationship sometime in 2012 whilst she was living in Poland. Since that time the parties have not had any joint financial dealings, have not shared a household, had not been out together or represented themselves as a couple or been companions providing each other with support. The Tribunal considers that since 2012 Ms Krakowska has had no commitment to a long term relationship.

   27. Taking all the circumstances of the relationship into account, the Tribunal is not satisfied Mr Ameen is in a de facto relationship with Ms Krakowska at the time of this decision. The parties are not married to each other and the Tribunal is not satisfied they have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, that the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

   28. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of decision.

   29. There is no evidence which indicates that Mr Ameen meets the alternative criteria in cl.820.221(2) and (3) which relate to the exceptions in the case of ;the death of the sponsor, where the parties have legal obligations to children, or where the applicant has suffered family violence.

   30. The applicant does not meet cl.820.221. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

7. The application identifies the following ground:

   The tribunal fell into legal error by failing to give me a fair hearing.

8. There is no substance in the proposition that the applicant was not given a fair hearing. It is clear that the applicant was invited to attend the hearing, and did attend the hearing consistent with the statutory regime. It is clear that the Tribunal complied with the requirements of s. 359A. The applicant, on his own evidence, admitted facts that gave rise to a position where the applicant could not meet the criteria for the grant of the visa. There is no substance in relation to the alleged ground of jurisdictional error in the application.

9. This matter was fixed for hearing on 18 June 2015, and orders were made that permitted the applicant to amend the application and file any further affidavit evidence on which he wished to rely and put on submissions.  No such documents were filed. 

10. At the commencement of the hearing, the applicant identified that he wished to seek an adjournment because he could not properly prepare himself, and identified that he had other pressures relating to study and that his mother was unwell. 

11. It appears that the applicant communicated with the first respondent on 10 August 2015, indicating that he wished to obtain an adjournment on the grounds that he desired to put on further material in support of his application and the relationship.  The first respondent indicated that any such adjournment would be opposed.  The first respondent opposed the adjournment application made by the applicant and identified that this was an application where, on the applicant’s own evidence, the applicant could not meet the criteria under the visa, and that that evidence had been accepted by the Tribunal.

12. The first respondent identified that the application failed to identify any arguable jurisdictional error.  There was no utility in granting an adjournment which would only add unnecessarily to the costs of the parties and utilise limited Court time where the proceedings are clearly doomed to failure for want of any jurisdictional error.  These proceedings are clearly doomed to failure.  It was for these reasons that the adjournment application was refused. Nothing was said by the applicant from the bar table in answer to the first respondent’s submissions or in support of the application identified any jurisdictional error. 

13. The application fails to establish any jurisdictional error on the part of the Tribunal.  The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 20 August 2015