AMITA v Minister for Immigration

[2019] FCCA 3563

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMITA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3563

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal complied with its statutory obligations – whether the applicant had a real and meaningful hearing before the Tribunal – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 375A, 476
Migration Regulations 1994 (Cth), reg.1.15A, cl.820.211, sch.2, sch.3

Cases cited:

Chi Cong Le v Minister for Immigration and Border Protection [2019] FCAFC 17

Applicant: AMITA AMITA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3537 of 2016

Judgment of: Judge Street

Hearing date: 9 December 2019

Date of Last Submission: 9 December 2019

Delivered at: Sydney

Delivered on: 9 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Hillyard
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 9 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3537 of 2016

AMITA AMITA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 November 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa (“Partner visa”).

2. The applicant is a citizen of India. On 11 May 2008, the applicant arrived in Australia on a subclass TU-572 visa, which ceased on 2 July 2008. The applicant’s last substantive visa was cancelled on 28 June 2011. The applicant then became an unlawful non-citizen until the applicant was granted a bridging visa on 5 January 2012 in association with a protection visa application. That application was refused on 15 June 2012. The Refugee Review Tribunal affirmed that refusal on 17 January 2013.

3. On 25 November 2014, the applicant applied for a Partner visa on the basis of a marriage to the sponsor on 12 October 2014.

4. On 27 August 2015, the Delegate refused the grant of a Partner visa.

5. The applicant applied to a differently-constituted Tribunal for review of the Delegate’s decision. On 2 February 2016, the differently-constituted Tribunal affirmed the decision under review. On 14 April 2016, a Judge of this Court remitted the matter by consent to the Tribunal on the basis that there had been jurisdictional error by the differently-constituted Tribunal in the conduct of the review in relation to the time for applying compelling reasons.

6. By letter dated 7 September 2016, the Tribunal invited the applicant to attend a hearing on 3 November 2016. The applicant appeared on that date to give evidence and present arguments.

7. The Tribunal in its reasons identified the background to the application for review. The Tribunal identified the relevant law in relation to the need for the applicant to meet the criteria under s.5F(2) of the Act and reg.1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”). In particular, the Tribunal identified in relation to cl.820.211(2)(a) at sch 2 of the Regulations whether the criteria at sch.3 of the Regulations (“the Schedule 3 criteria”) had been satisfied and, if not, whether there were compelling reasons for not applying the Schedule 3 criteria pursuant to cl.820.211(2)(d) of the Regulations.

8. The Tribunal identified the applicant’s background.

9. The Tribunal identified that there was some evidence as to the spousal relationship between the applicant and the sponsor at the time of application in November 2014 and during the visa process with the Department of Immigration and Citizenship until August 2015. The Tribunal identified, however, that the applicant had not provided any further probative evidence that he and his sponsor remained in a spousal relationship.

10. The Tribunal found that there was no documentary or corroborative evidence since August 2015 onwards to concerning the financial aspects of the relationship, the nature of the household, any social aspects of the relationship or the nature of the applicant and sponsor’s commitment to each other.

11. The Tribunal identified the evidence that the sponsor had withdrawn her support for the Partner visa application. The Tribunal identified the applicant’s evidence that the parties separated two or three months prior to the Tribunal’s decision and that the parties are living separately and apart. The Tribunal found that the parties are living separately and apart and was unable to be satisfied that the parties’ separation is temporary.

12. The Tribunal was unable to be satisfied that, at the time of the decision, the parties are in a spousal relationship, as required under the legislation, because the parties had not produced to the Tribunal any evidence concerning their spousal relationship regarding the financial aspects of their relationship, the nature of any household, any social aspects of their relationship or the nature of their commitment to each other.

13. In these circumstances, the Tribunal was not satisfied that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and was not satisfied that the relationship was genuine and continuing or that they do not live separately and apart on a permanent basis.

14. The Tribunal found that the applicant did not meet the criteria in s.5F of the Act and did not meet the requirements of cl.820.221 at sch 2 of the Regulations.

15. Accordingly, the Tribunal affirmed the decision under review.

16. On 17 September 2015, a certificate under s.375A of the Act was issued. The Tribunal in its reasons identified that, at the hearing, it invited the applicant to respond or comment in respect of a certificate that had been issued under s.375A of the Act. The Tribunal identified that the s.375A certificate was disclosed to the applicant and that the Tribunal put the information to the applicant in the course of the information.

17. The Tribunal identified that the applicant was provided additional time to provide a response but that no response had been received at the time of the decision. Given the disclosure of the s.375A certificate and the information the subject of the s.375A certificate to the applicant in the course of the hearing and the invitation to comment and respond and the opportunity provided to the applicant in that regard, the applicant suffered no practical injustice by reason of the existence of the s.375A certificate or the information the subject of the s.375A certificate.

18. The Court also notes that the Tribunal informed the applicant that the information related to third parties and that the Tribunal placed no weight on the information. In these circumstances, the Court finds that no weight was placed on the information the subject of the s.375A certificate and that, accordingly, no jurisdictional error arises by reason of the existence of the s.375A certificate or the information the subject of the s.375A certificate: see Chi Cong Le v Minister for Immigration and Border Protection [2019] FCAFC 17.

19. For the reasons given, there was no practical injustice in the conduct of the review and no jurisdictional error arises by reason of the existence of the s.375A certificate or the information the subject of the s.375A certificate.

Before the Court

1. This proceeding was commenced on 13 December 2016.

2. On 13 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understand the nature of the hearing as explained by the Court.

4. From the bar table, the applicant maintained that his life would be at risk if he returned to India because he had married a Muslim lady from a very strict family. The applicant’s submission in that regard, in substance, invited this Court to determine the matter on compassionate or discretionary grounds. This Court has no power to determine the matter on compassionate or discretionary grounds.

5. Whether the criteria in respect of the Partner visa was met did not involve any consideration in respect of the applicant’s concerns in relation to being returned to India.

6. The applicant’s submissions otherwise identified his attachment to Australia and his compliance with Australian law, which is expected of all citizens and/or non-citizens in Australia. The applicant’s attachment to Australia, again, was, in substance, an invitation to this Court to determine the matter on compassionate or discretionary grounds. This Court has no power to do so, nor can the Court review the merits.

7. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground in the Application

1. The ground in the application is as follows:

   1. THE DECISION OF THE TRIBUNAL INVOLVES JURISDICITONAL ERROR.

2. The bare allegation in the alleged ground of error is not, of itself, capable of making out any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the hearing. On the face of the material before the Court, the applicant had a real and meaningful hearing and the Tribunal raised with the applicant his concerns in respect of the evidence and in respect of the various criteria under reg.1.15A(3) of the Regulations.

3. The Tribunal’s reasons reflect an active intellectual engagement with material that was before the Tribunal.  There is no basis to find that there is any denial of procedural fairness or any contravention of the statutory provisions in relation to the conduct of the review.

4. For the reasons already given, the existence of the s.375A certificate did not give rise to any jurisdictional error.

5. No jurisdictional error is made out by ground 1.

6. Accordingly, the application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  27 February 2020