Ayuk v Minister for Immigration

[2018] FCCA 2921

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYUK v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2921

Catchwords:
MIGRATION – Application for judicial review – Partner (Temporary) (Class UK) visa – whether the Tribunal made an error of law – whether the Tribunal failed to afford procedural fairness – whether Tribunal failed to consider evidence – no error by Tribunal– application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 65, 360.

Migration Regulations 1994 (Cth) sch 3

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural Affairs [2003] FCAFC 184

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478

Applicant: JOSEPH BISONG AYUK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 773 of 2016

Judgment of: Judge McNab

Hearing date: 14 June 2018

Date of Last Submission: 14 June 2018

Delivered at: Melbourne

Delivered on: 17 October 2018

REPRESENTATION

Counsel for the Applicant: Mr W. Drent

Counsel for the Respondents: Mr B. Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 17 May 2018 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 773 of 2016

JOSEPH BISONG AYUK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an amended application filed 17 May 2018, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 21 March 2016. The decision of the Tribunal affirmed the decision of a delegate of the First Respondent dated 24 September 2015, not to grant the Applicant a Partner (Temporary) (Class UK) Visa (‘Visa’). 

2. The Applicant relies on six grounds of review, which are extracted from his originating application and replicated exactly below (citations omitted):

   1.The Tribunal made an error of law in finding there was an inconsistency in the evidence between the applicant and his wife.

   Particulars

   a.Adverse information was put to the applicant. The transcript shows the applicant provided an answer to questions asked. The applicant's answers were reasonable, not inconsistent and provided a logical explanation to the adverse information. The Tribunal erred in finding an inconsistency.

   2. The Tribunal erred in denying procedural fairness to the applicant.

   Particulars

   a.The Tribunal referred to part of the delegates' decision in regard to genuineness concerns which in tum referred to a DIPB file note. The part referred to the applicant by the Tribunal was hearsay. There was a failure to properly put the file note and its contents to the applicant.

   3.The Tribunal failed to consider relevant material.

   Particulars

   a.The materials before the Tribunal contained two statutory declarations. They contained evidence that supported the genuineness of the relationship. This material was not considered or referred to in the Tribunal's decision.

   4. The Tribunal erred by making an irrelevant consideration.

   Particulars

   a.The Tribunal when considering whether or not there were compelling reasons to not apply Schedule 3 criteria such as hardship, questioned the genuineness of the relationship. This consideration was arguably not relevant for assessing compelling reasons to permit a person to make an application in Australia or not.

   5.The Tribunal erred in failing to properly consider the hardship to the applicant if required to return to Cameroon.

   Particulars

   a.The examination of compelling reasons involved consideration of possible hardship on the applicant and his family if required to return to his country of origin. The Tribunal assessed the applicant's fear of harm of returning as if it was a claim for non-refoulement under a protection visa claim which is a different test. This approach was incorrect as it failed to take into account additional hardship considerations.

   6. The Tribunal erred by taking into account an irrelevant consideration.

   Particulars

   a.The Tribunal referred to material in the form of written evidence that was not part of the material before it on review. The decision concerning the applicant's separate protection visa was also not part of the material on review.

3. I note that at the hearing, counsel for the Applicant stated that the sixth ground had been abandoned. Consequently, this decision will only make findings on the first five grounds put forward by the Applicant.

Background

1. The Applicant is a male citizen of Cameroon who arrived in Australia on 13 November 2012 as the holder of a subclass 572 visa. On 20 December 2012 he applied for the Visa. His Visa application was refused on 25 February 2013, and his subclass 572 visa was cancelled on 27 June 2013.[1]

   [1] Court Book 79.

2. The Applicant made a combined application for the Visa and a Partner (Residence) (Class BS) Visa on 10 November 2014 on the basis of his marriage to an Australian Citizen on 13 October 2014. The Application was sponsored by the Applicant’s wife (‘Sponsor’).[2] 

   [2] Ibid 5-6, 8.

3. On 12 May 2015, the Department of Immigration and Border Protection wrote to the Applicant and brought to his attention ‘Criterion 3001’ which was contained in sch 3 of the Migration Regulations 1994 (Cth) (‘the Regulations’). This required the Visa application to have been made within 28 days after the Applicant last held a substantive visa. The letter also provided that the Regulations, “allow the schedule 3 criteria to be waived where there are compelling reasons for not applying those criteria”.

4. On 3 June 2014, the Applicant provided material in support of his application for Criterion 3001 to be waived, including statutory declarations from supporting witnesses.[3]

   [3] Ibid 53-67.

5. On 24 September 2014, the delegate refused to grant the Applicant the two visas he had applied for.[4]

   [4] Ibid 158-160.

6. On 21 October 2014, the Applicant applied to the Tribunal for review of the delegate’s decision.[5]

   [5] Ibid 107-153.

7. On 14 January 2015, the Tribunal invited the Applicant to attend a hearing before it on 17 March 2015.[6] 

   [6] Ibid 158-160.

8. On 17 March 2015, the Applicant and his Sponsor attended the hearing before the Tribunal.[7] The Applicant provided the Tribunal with various documents in support of his application the following day.[8] 

   [7] Ibid 171-174.

   [8] Ibid 175-188.

9. On 21 March 2015, the Tribunal affirmed the decision of the delegate not to grant the Applicant a Visa.[9] The Tribunal cited the requirement in Criterion 3001 and did not accept that there were compelling reasons for Criterion 3001 to be waived.  

   [9] Ibid 188-201.

Decision of the Tribunal

1. The Applicant claimed to have three compelling reasons why the Tribunal should not apply the sch 3 criteria. The Tribunal examined each of these reasons in turn.[10] 

   [10] Ibid 213 [14].

2. As his first reason, the Applicant claimed that the Department advised him that he was eligible to apply for a partner visa. The Tribunal outlined the history of the Applicant’s various visa applications and found that it was not persuaded that the Department had caused the Applicant to be unable to satisfy the sch 3 criteria.[11]  

   [11] Ibid [16] – [19].

3. As his second reason, the Applicant claimed that he faces harm if he is returned to Cameroon. The Tribunal asked whether the Applicant has additional evidence to that before the Department and the Refugee Review Tribunal who assessed his protection claims. He confirmed he did and submitted a number of documents for consideration by the Tribunal after the hearing. Having regard to this evidence, the Tribunal did not accept his claims to fear harm upon return to Cameroon.[12]

   [12] Ibid 214 – 215 [20] – [26].

4. As his third reason, the Applicant claimed that the Sponsor and her children would suffer hardship if forced to leave Australia. The Tribunal found there was conflicting evidence over the working arrangements of the Applicant and the Sponsor. There were also a number of inconsistencies regarding the nature of the household, which the Tribunal found the Applicant was unable to respond to in a credible fashion.[13]

   [13] Ibid 215 – 216 [27] – [42].

5. The Tribunal found, after considering the circumstances of the Applicant and the Sponsor separately and cumulatively, that it was not satisfied that there were compelling reasons for not applying the sch 3 criteria.

Finding

Ground one

1. The Applicant contends that the Tribunal made an error of law in finding there was an inconsistency in the evidence between the Applicant and the Sponsor. In particular, this inconsistency related to a question the Applicant was asked regarding the nature of the household and the Sponsor’s daughter’s relationship. The Sponsor had given evidence that her daughter was engaged and her fiancé lived with the family. However, even though the Applicant claimed to live with the Sponsor and her daughter, he was unaware that the daughter was engaged and that the fiancé also resided in the home. The Applicant submits that his responses, indicating that perhaps he and the fiancé were simply never home at the same time and the daughter hadn’t mentioned his existence, do not reveal sufficient inconsistency to affect the credibility of his claims. This cannot be accepted; as noted by the First Respondent, the Applicant claimed to be close to his step-daughter and be actively involved in his household. The Tribunal’s finding that the evidence of the Applicant and his wife was inconsistent was open on the material before it, does not reveal any irrationality or illogicality and does not give rise to any jurisdictional error.[14] This ground is dismissed.

   [14] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 [131] (Crennan and Bell JJ).

Ground two

1. The Applicant submits that the Tribunal denied him procedural fairness by referring to a part of the delegate’s decision which were referred to in a Departmental file note. The Applicant submits that the Tribunal asked the Applicant about the material contained within the file note and that this material amounts to hearsay. Further, the Applicant submits that by only putting part of the record, the information within was not properly put.

2. While the Applicant did not cite the source of this obligation, the First Respondent submits that this ground amounts to a misconception of the obligation imposed on the Tribunal by s 360 of the Act. The First Respondent correctly observed that s 360 requires the Tribunal to put dispositive issues to the Applicant. If the Tribunal does not do so, the dispositive issues are taken to be those already identified by the delegate. In this case, the Tribunal did canvas this issue at [33] of its reasons; there is no basis for inferring that the Tribunal denied the Applicant procedural fairness on the basis of the manner in which this information was put to him. This ground is dismissed.

Ground three

1. The Applicant submits that the Tribunal did not consider relevant evidence, namely two statutory declarations which supported the genuineness of the relationship between the Applicant and the Sponsor. There is no reference to these declarations in the Tribunal’s record of decision.

2. The First Respondent submits that the task of the Tribunal was not to make a determination on whether the Applicant and his wife were in a genuine relationship, but whether ‘compelling reasons’ existed for not applying the criteria under sch 3 of the Migration Regulations 1994. The statutory declarations were referred to by the delegate; the First Respondent submits that an inference may therefore be made that the Tribunal considered the evidence but found it was not material to the decision it had to make. The Tribunal is not required to make findings on every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural Affairs [2003] FCAFC 184 [46].

3. Given the statutory task of the Tribunal, the immateriality of the material to the question of ‘compelling reasons’ and the reference to the material by the delegate, the failure to make findings on the statutory declarations does not reveal jurisdictional error. This ground is dismissed.

Ground four

1. The Applicant submits that the Tribunal erred in considering whether or not the relationship of the Applicant and the Sponsor was genuine in making a determination on whether there were ‘compelling reasons’ not to apply the sch 3 criteria. It is said that as this is not a factor that relates to discerning whether a ‘compelling reason’ exists for waiving the

   
   

   sch 3 criteria and therefore is an irrelevant consideration, resulting in error.

2. The genuineness of the relationship between Applicant and Sponsor was considered by the Tribunal in the context of what hardship, if any, may be suffered by the Sponsor and/or her family if the Applicant was returned to Cameroon. The First Respondent submits that there is no error in having regard to this consideration as it is not prohibited by statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 per Mason J. The Regulations confer discretion on the Tribunal when deciding whether to waive the sch 3 criteria for ‘compelling reasons’. As noted by Mason J, ‘where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined’.[15] It cannot be said that the Tribunal made an error in considering the genuineness of the relationship as it was entitled to consider any matter which it believed relevant to the question it had to decide. This ground is dismissed.

   [15] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (Mason J).

Ground five

1. The Applicant submits that the Tribunal fell into error by failing to properly consider the hardship to the Applicant if required to return to Cameroon. It is said that the Tribunal inappropriately considered the Applicant’s fear of harm if returned to Cameroon as if this claim had been made in the context of a protection visa claim. The Applicant submits that:

   The Tribunal’s examination was misplaced because the test for compelling reasons relates to either returning to a country of origin to make an application for a spousal visa or being permitted to stay in Australia to do so. It is through this lens that hardship is considered. While there is no doubt that harm could form part of a decision about hardship, it is not the sole criterion and was not in this case.

2. The First Respondent submits that this statement is not consistent with the principles outlined in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 and MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478.

3. The Tribunal made findings on the Applicant’s claim to fear harm upon return to Cameroon as this was a basis for which he said he had a compelling reason to have the sch 3 criteria waived. It is clear that a fear of harm upon return to Cameroon constitutes a hardship to him in being forced to re-apply for the Visa outside of Australia and this was how the Applicant’s submission on this point was intended. There is no prescribed ‘test’ for evaluating whether the Applicant has compelling reasons to have the sch 3 criteria waived. The drafting of the Regulations allows the Tribunal considerable discretion in what it may consider when determining compelling circumstances. As noted by the First Respondent, the Tribunal was entitled to consider the likelihood of harm that could be faced by the Applicant if returned to his home country. If the Tribunal had found the Applicant’s claims credible, his fear of harm may have constituted a compelling reason to waive the sch 3 criteria. The Tribunal also considered the hardship that would be suffered by the Applicant’s family if he were returned to Cameroon at [27] – [42] and it cannot be said that the Tribunal made an error, having considered all the compelling reasons raised by the Applicant for why the sch 3 criteria should not be applied. This ground is not made out and must be dismissed.

Conclusion

1. For the reasons outlined above, I find that the grounds raised by the Applicant are not made out and are dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 17 October 2018