Arora v Minister for Immigration

[2016] FCCA 87

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARORA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 87

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), schedule 2: 820.211(2)(d)(i), 820.211(2), 820.211(d)(ii), schedule 3: 820.3211(2)(d)

Bretag v MILGEA (Federal Court, unrep., O’Loughlin J., 29 November, 1991)

Babicci v MIMIA (2005) 141 FCR 285

Applicant: RAJEEV ARORA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 298 of 2015

Judgment of: Judge Jarrett

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Brisbane

Delivered on: 19 January 2016

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Tatersall

Solicitors for the First Respondent: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.

2. The application filed on 7 April, 2015 be dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 298 of 2015

RAJEEV ARORA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of a migration review tribunal made on 11 March, 2015 that affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Partner (Temporary) (Class UK) visa.  The applicant seeks that the application for review be remitted to a migration review tribunal to be determined according to law.

2. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.

3. Despite a direction that permitted the applicant to file an amended application for judicial review better particularising his grounds of review, he has not taken up that opportunity.  Neither has he delivered any written submissions in support of his application.  I have written submissions from the first respondent to which I have paid regard.

Background

1. The applicant is a citizen of India.  He arrived in Australia on 29 June, 2011 as the holder of a Student (Temporary) (Class TU) visa.  That visa ceased on 29 June, 2011.

2. The applicant subsequently made applications for further visas which were refused.  He then lodged an application for a Partner (Temporary) (Class UK) visa on 8 August, 2013.  The applicant was sponsored by a person that he claimed to be his partner, Ms Karen Beattie.

3. On 2 September, 2013 a delegate of the first respondent refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant and his sponsor were in a de facto relationship at the time the visa application was lodged and therefore he did not meet the requirements of cl.820.211(2) of the Migration Regulations 1994 (Cth).

4. On 18 September, 2013 the applicant sought review of that decision by a migration review tribunal.  On 11 March, 2015, following a hearing on 10 March, 2015 the tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa.

5. The tribunal correctly identified that the applicant did not hold a substantive visa at the time that he applied for his partner visa. In that event, he needed to satisfy the requirements of cl.820.211(2)(d) of the Regulations. In particular he needed to satisfy cl.820.211(2)(d)(ii) which provided:

   820.2 – Primary Criteria

   820.21 – Criteria to be satisfied at time of application

   820.211

   …

   (2)  An applicant meets the requirements of this subclause if:

   …

   (d)  in the case of an applicant who is not the holder of a substantive visa—either:

   (i)  the applicant:

   (A)  entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)  satisfies Schedule 3 criterion 3002; or

   (ii)     the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

6. The tribunal found that the applicant did not satisfy schedule 3 criteria 3001.  That finding is uncontroversial.  Accordingly, before the tribunal could grant the visa, the tribunal needed to be satisfied that there were compelling reasons for not applying those criteria. 

7. The tribunal was not satisfied that there were compelling reasons for not applying those criteria.  In reaching that conclusion, the tribunal:

   a)was not satisfied that the parties had been in a longstanding relationship at the time the application was lodged;

   b)was not satisfied that the fact that the applicant’s sponsor had experienced a miscarriage in April, 2013 was a compelling reason for not applying the schedule 3 requirements;

   c)placed no weight on the report of Fulvio DiPrinzio, psychologist, insofar as it purported to relate to the time of application as the psychologist had no first-hand knowledge of the sponsor’s mental state at the time of the application.  In the absence of contemporaneous medical evidence it did not accept that the miscarriage caused her significant psychological distress, as at the time of the application, such that she required the applicant’s support;

   d)did not accept that the applicant would be homeless if he were to return to India;

   e)found there was no reliable evidence that the sponsor was unable to safely leave the country at the time of the application; and

   f)accepted that the sponsor suffered a second miscarriage in 2014 and that she was suffering from psychological conditions as at the time of the tribunal’s hearing and had a surgery scheduled in May, 2015 however, it was unable to consider those issue as they were not circumstances in existence at the time of the application. 


Grounds of Review

1. The application raises the following grounds of review in his application filed on 7 April, 2015:

   1.  Appealing against MRT decision or refusal a/partner visa (UK 820).

   2. The applicant satisfies all criteria as listed in Regulation 1.09A and 2.03A of the Migration Regulations 1994 in assessment of de facto partners and relationships.

2. The applicant’s grounds have not been prepared by a lawyer.  They do not point to any error in the tribunal’s decision.  At best they cavil with the conclusion arrived at by the tribunal on the material before it.

3. The applicant filed what he described as an amended affidavit on 13 April, 2015.  It was not prepared by him, but rather by his visa sponsor Karen Beattie.  The affidavit is in substance, his submissions in support of his application.  I have treated them as such.  Although the applicant addressed me at length at the hearing of his application, his oral submissions did not add to the matters argued in his amended affidavit.

4. Before addressing the matters raised in the affidavit, it is necessary to examine the tribunal’s reasons a little more closely.

5. The tribunal recognised that the applicant wished the tribunal to have regard to matters which had occurred after the applicant had lodged his visa application. At paragraph 11 of the reasons for decision, the tribunal recognised that the relevant criterion was a time of application criterion and so a consideration of events occurring after that point could not amount to compelling circumstances so as to engage the “waiver” within cl.820.211(2)(d)(ii). However, at paragraph 12 of the tribunal’s reasons, the tribunal noted that on the authority of Bretag v MILGEA (Federal Court, unrep., O’Loughlin J., 29 November, 1991), when assessing whether compelling circumstances existed at the time of the relevant visa application, the tribunal may have regard “to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of application”.

6. The tribunal turned to consider the proper construction of the word compelling in cl.820.211(2)(d)(ii) of the Regulations. The tribunal referred to and took note of the Explanatory Statement to Statutory Rule No 75 of 1996 which introduced the “waiver” provision to the schedule 3 requirements in cl.820.3211(2)(d) of the Regulations. The tribunal noted that the word compelling was not defined in the regulations but noted common dictionary definitions for it.  The tribunal referred to Babicci v MIMIA (2005) 141 FCR 285 at [24] which dealt with the meaning of compelling.  Even though that decision was about the meaning of the word in connection with a different migration regulation, the tribunal considered that the discussion was relevant to the issue before the tribunal. 

7. Finally, the tribunal noted that it was obliged to consider all of the circumstances of the case including any matters put forward by the applicant and determine from the evidence as a whole whether the necessary compelling reasons existed so as to engage the “waiver”.

8. No criticism can be made of the tribunal’s reasons concerning the issue it had to determine or the approach that the tribunal took to the proper construction of the compelling in cl.820.211(2)(d) of the Regulations.

9. The tribunal turned to consider the factual material put before it by the applicant.  It considered that material carefully.  It noted that in respect of matters that had occurred after the applicant had made his visa application, it could not take those matters into account, except in the way explained in Bretag (above).  There were several matters upon which the applicant wished to rely as establishing compelling reasons that occurred after the applicant made his visa application.  They were:

   a)the applicant’s sponsor suffering a second miscarriage in early 2014.  His sponsor had suffered one miscarriage before the applicant’s visa application.  The tribunal took that fact, and the effect of the miscarriage upon the applicant and his sponsor into account;

   b)the thought of the applicant’s visa being refused and the likelihood of him being deported adversely affected his sponsor’s mental health;

   c)the applicant’s sponsor would be undergoing surgery in May, 2015 and had no sick leave with her employer because she had used most of her sick leave when she was depressed following her miscarriages;

   d)the sponsor will need emotional support which can only be offered by the applicant during her healing process;

   e)the deportation of the applicant will cause considerable loss for his sponsor both emotionally and physically;

   f)the sponsor’s father also had concerns for her;

   g)the applicant had little support in India and his father had been physically abusive to him.  That was part of the reason why he came to Australia;

   h)the applicant had few connections in India and would find it difficult to secure a job and a source of income;

   i)the sponsor would not be able to live in India because she had no exposure to that culture or that way of life.  The additional stress caused by having to adjust to a new culture and environment would worsen the sponsor’s chances to conceive a child with the applicant and add to her emotional and physical anguish;

   j)the sponsor was highly dependent upon the applicant for on-going emotional support and should they be separated the sponsor’s mental and physical health will deteriorate significantly.  A medical report was relied upon to support that contention.

10. As to the first miscarriage, the tribunal noted an anomaly in the applicant’s evidence about the timing of that in connection with a trip that he took to India between 26 June and 5 August, 2013.  The applicant asserted that his sponsor had a miscarriage while he was away and that it was very stressful.  The tribunal noted that medical evidence prepared in January, 2015 relied upon by the applicant suggested that the miscarriage occurred much earlier in April, 2013.

11. The tribunal recorded the evidence given by the applicant about the commencement and continuation of his relationship with his sponsor.  It referred to evidence from the applicant’s mother given by way of written statement from her.

12. The tribunal recorded the evidence given by the sponsor about her relationship with the applicant, the first miscarriage and her anxiety about conceiving a child with the applicant.  The sponsor’s father also gave evidence about the impact upon him and his wife if the applicant had to depart the country.

13. The tribunal found that the parties’ relationship was of 13 months duration before the visa application was made and so was “well short” of the two year guideline found in the Explanatory Memorandum.  The tribunal did not consider that the parties had been in a long standing relationship at the time the relevant visa application was made such as to give rise to a compelling reason for not applying the schedule 3 requirements.

14. The tribunal found that the applicant’s sponsor had a miscarriage in April, 2013.  The tribunal was not satisfied that the sponsor had a miscarriage while the applicant was in India or that the miscarriage was the result of stress experienced by the sponsor due to the applicant’s absence.  The tribunal found that applicant departed for India approximately two months after the sponsor had the miscarriage and he remained in India for over a month.

15. The tribunal found that the miscarriage experienced by the sponsor was not of itself a compelling reason for not applying the schedule 3 criteria.

16. The tribunal considered that the sponsor’s psychological state following the miscarriage and the need for the applicant’s support was not a compelling reason for not applying the schedule 3 criteria.  In that respect, the tribunal placed no weight upon the applicant’s medical evidence about the sponsor’s psychological condition.  That was because that author of the relevant opinion, Fulvio DiPrinzio, had only consulted with the sponsor in January, 2015 and so had no first-hand knowledge of the sponsor’s mental state as at 8 August, 2013, some 17 months earlier.  Moreover, the tribunal had rejected some of the factual matters upon which that report was based.

17. The tribunal did not accept that the sponsor’s miscarriage in April, 2013 caused her significant psychological distress as at the time of application, such that she required the applicant’s support.  The tribunal reached that conclusion on the basis of the chronology of events set out above and in particular on the applicant’s departure for India two months after the sponsor’s miscarriage.

18. The tribunal did not accept that the applicant would be homeless in India or that he would not be able to support himself should he have to return there.

19. The tribunal also considered whether the sponsor’s claimed difficulties with travelling to India were a compelling reason for not applying the schedule 3 criteria and decided against that proposition.

20. Whilst the tribunal accept that

    a)the applicant suffered a second miscarriage in 2014;

    b)had gall bladder surgery scheduled for May, 2015;

    c)was suffering from psychological conditions;

    d)the sponsor and the applicant had subsequently married; and

    e)the sponsor was 43 years of age with “a declining fertility window”.

    the tribunal found that it could not consider any of those matters as amounting to compelling reasons for not applying the relevant criteria because they were not circumstances that were in existence at the time of the lodgment of the applicant’s visa application.

21. The tribunal concluded that taken separately or together, the matters that it had identified and to which it could pay regard did not amount to compelling reasons not to apply the schedule 3 criteria. Consequently, the applicant did not meet cl.820.211(2)(d)(ii) and the decision under consideration could only be affirmed.

22. Thereafter, under the heading “Ministerial Intervention”, the tribunal said:

    50.    The Tribunal notes that it has considerable sympathy for the applicant and sponsor’s current circumstances.  However, there is no scope for the Tribunal to consider circumstances which did not exist at the time of application in the context of cl.820.211(2)(d)(ii). 

    51.    The Tribunal notes that the report of Ms DiPrinzio indicates that the sponsor’s current mental state is such that, should the applicant be required to leave Australia, “the risk of Mrs Arora self-harming cannot be discounted”.  It also expresses the view that should the sponsor follow the applicant to India, “[h]er mental health will most likely suffer adversely, heightening the risk to herself”.  The Tribunal considers that this amounts to:

    •    Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the applicant leave the country.

    52.    Having regard to these circumstances, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    53.    It is a matter for the applicant and his representative to provide relevant submissions and evidence to the Minister.

23. Against that background, the applicant makes the arguments set out in his amended affidavit.  Many of the arguments are difficult to follow.  Many, even if correct, would not lead to relief in this Court.  Nonetheless, I will attempt to address them.

24. The first argument seems to be that the first respondent’s delegate did not give the applicant sufficient time to submit all of his evidence to the first respondent’s department.  Even if that is so, it is of no consequence because the applicant had submitted all of the material upon which he wished to rely by the time of the tribunal hearing on 10 March, 2015.  The tribunal demonstrably considered all that the applicant wished it to consider.

25. The second argument seems to be that having decided that that the applicant and his sponsor were in a de facto relationship for at least twelve months, the tribunal made an error of law when it determined that it should not consider the evidence (set out above) that the applicant asserted demonstrated compelling reasons for not applying the schedule 3 criteria.

26. However, the approach that the tribunal took was entirely correct.  The evidence that the tribunal determined not to take into account because it related to events that occurred after the applicant lodged his visa application was not evidence that went to establish compelling reasons at the time the applicant lodged his visa application.

27. The third argument is that the tribunal recognised that compelling reasons for not applying the schedule 3 criteria did indeed exist but suggested that the only body that could do anything about that was this Court.  The applicant relies upon paragraph 52 of the tribunal’s decision in that regard.  But as will be appreciated from the extract above, the tribunal’s reasons say nothing of the sort.  At best, the tribunal suggested that the applicant’s case was a suitable one for the intervention of the Minister for Immigration.

28. The fourth discernable argument is with the way in which the tribunal dealt with the evidence concerning the sponsor’s first miscarriage and the conclusions that the tribunal came to about that.  This argument, however, is an impermissible attempt to cavil with the tribunal’s factual findings about that matter.  There is nothing illogical or irrational about the tribunal’s fact finding in that regard.  The tribunal’s reasons for dealing with that evidence in the way that it did and its reasons for reaching its conclusions about those factual issues are patent from the tribunal’s reasons.

1. The next argument is with the way in which the tribunal dealt with the evidence concerning the applicant’s visit to India and the relationship that he claimed to have with his mother and father in that country.  Again, this argument seeks only to cavil with the tribunal’s factual findings about that matter.  There is nothing illogical or irrational about the tribunal’s fact finding in respect of these matters.  The tribunal’s reasons for dealing with that evidence in the way that it did and its reasons for reaching its conclusions about those factual issues are clear from the tribunal’s reasons.

2. The balance of the affidavit simply restates the arguments put to the tribunal.  The applicant attaches further documents in support of his claims.  Much of what is said in the affidavit was not before the tribunal.  The affidavit and the submissions that it contains are nothing more than another attempt by the applicant and the sponsor to reargue the merits of the applicant’s visa application. 

Conclusion

1. The application for judicial review does not demonstrate that the tribunal’s decision is attended by error, let alone jurisdictional error.  The tribunal’s decision is a privative clause decision and unable to be reviewed by this Court.

2. Accordingly, the application must be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date:  19 January 2016