Bains v Minister for Immigration

[2011] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAINS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 452

MIGRATION – Alleged jurisdictional error by Migration Review Tribunal – construction of clause 572.314 of Schedule 2 of the Migration Regulations 1994 – whether necessary for person to become family member after application for purposes of clause 572.314 or whether notice given to the Minister suffices – Tribunal’s construction upheld.

Migration Regulations 1994, cl.572.314, 572.322
Migration Regulations 1994, reg.1.15A, 2.07AF

Applicant: HARINDA SINGH BAINS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1783 of 2010

Judgment of: Burchardt FM

Hearing date: 20 May 2011

Date of Last Submission: 20 May 2011

Delivered at: Melbourne

Delivered on: 21 June 2011

REPRESENTATION

Counsel for the Applicant: Mr A. Naidu

Solicitors for the Applicant: Jade Lawyers

Counsel for the First Respondent: Ms C. Symons

Solicitors for the First Respondent: Clayton Utz Lawyers

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1783 of 2010

HARINDA SINGH BAINS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 3 December 2010. Although the amended application filed on 15 April 2011 itemises five grounds of application, I accept the submission of the first respondent that in substance, the applicant presses two matters only. The first matter is whether the Tribunal correctly applied and construed clause 572.314 of the Migration Regulations 1994 (“the Regulations”).  The second ground is that the Tribunal failed to accord the applicant procedural fairness. 

2. For the reasons that follow, I do not think either of these assertions is correct and it follows that the application must be dismissed. 

3. The facts in this case are in large part uncontroversial.  What follows is taken from the Tribunal’s decision and the written submissions of the parties.  I will indicate areas of dispute as they arise. 

4. The applicant was born in India on 20 March 1980 and on 6 March 2005 arrived in Australia on a student visa. 

5. On 4 February 2007, the applicant married Ramanjot Kaur and on

   
   

   28 October 2008 Ramanjot Kaur applied for a student visa with the applicant as a secondary person. 

6. The applicant applied to divorce Ramanjot Kaur in January 2009. 

7. On 19 February 2009, Jyoti Bala applied for an extension of her student visa and on 27 February 2009 Ramanjot Kaur withdrew her visa application. 

8. On 3 March 2009, Jyoti Bala’s divorce order was finalised and on

   
   

   5 March 2009 the applicant’s divorce order from Ramanjot Kaur was made. 

9. On 16 March 2009, the Minister granted Jyoti Bala’s subclause 572 visa and on the same day she and the applicant submitted a notice of intention to marry. 

10. On 25 March 2009, the applicant applied for a student (temporary) (class TU) visa on the basis of a de facto relationship with Jyoti Bala. 

11. On 1 April 2009, the Department of Immigration and Citizenship informed the applicant that his application as a member of Jyoti Bala’s family unit was refused on the basis that the delegate was not satisfied that he met the prescribed criteria pursuant to clauses 572.314 and 572.322 of Schedule 2 to the Regulations.

12. On 6 April 2009, the applicant’s divorce order was finalised. 

13. The applicant subsequently applied for review to the Tribunal in April 2009, during which month he also married Ms Bala. 

14. The Tribunal held a hearing on 28 July 2010 and gave the decision, the subject of this proceeding, as earlier indicated on 3 December 2010.  There were, however, two areas of significant factual controversy.  The first was when the relationship between the applicant and Ms Bala commenced.  The applicant and Ms Bala both ultimately asserted that the relationship commenced in March 2008.  The Tribunal did not believe them. 

15. The second area of factual controversy, which in part reflected the first, was whether or not the applicant and Ms Bala were in a de facto relationship for the one year period before the application that has ultimately produced this proceeding.  Once again, the Tribunal did not believe the assertions of Ms Bala and the applicant that they had been in a de facto relationship from March 2008 until March 2009. 

16. The applicant’s submission about the application and construction of sub-regulation 572.314 falls, in my opinion, into two parts. 

17. First, it was submitted that the Tribunal held in its conclusion that the proper construction of the regulation required the applicant to show that he became a family member of Ms Bala’s family and that this had occurred after the grant of the visa to Ms Bala on 16 March 2009. 

18. What was submitted here was that the phraseology of the Regulation merely required evidence i.e. notification to be given to the Minister after the visa had been granted, not that the relationship had itself to have commenced after the grant of the visa. 

19. The second aspect of criticism relates to the Tribunal’s approach to the construction of reg.1.15A and the way in which the Tribunal addressed the factual findings as to when the de facto relationship between the applicant and Ms Bala commenced.

20. Clause 572.314 is part of secondary criteria (see regulation 572.3) and within that class, part of the criteria to be satisfied at the time of application (see clause 572.31).

21. The terms of this sub-regulation are:

    “If the applicant is not included in the application under

    
    

    sub-regulation 2.07AF (3), or the information under

    
    

    sub-regulation 2.07AF (4), as a member of the family unit of the primary applicant mentioned in those sub-regulations, the applicant gives to the Minister evidence that the applicant became such a member of the family unit after the decision to grant the subclass 573 or 574 visa to the primary applicant was made.”

22. The Tribunal found that that meant, in the context of the facts as they stood in this case, that the applicant had to prove that he became a member of Ms Bala’s family unit between the date on which she was granted her visa, namely 16 March 2009, and the date upon which the application was made, namely 25 March 2009. 

23. In answering this question, it is important to note the scheme of the Regulations insofar as they deal with applications by persons who are members of a family unit. 

24. Regulation 2.07AF states relevantly:

    “(3). An application made on form 157A, 157A (Internet), 157E or 157G by a person who seeks to satisfy the primary criteria (the primary applicant) must include:

    (a) The name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application;  and

    (b) The relationship between the person and the applicant.

    (4). If a person becomes a member of the family unit of the primary applicant after the time of application or before the time of the decision, the primary applicant must inform the Minister, in writing, of:

    (a) The name, date of birth and citizenship of the person;  and

    (b) The relationship between the person and the primary applicant.”

25. Regulation 573.314 only operates in circumstances where the two subparts of reg.2.07AF are not satisfied.

26. Thus it is clear that if the primary applicant already has a family member, then they must include them on their application (regulation 2.07AF(3)).  If a person becomes a family member after the application but before the time of decision, then the primary applicant must notify the Minister of the identity of the person who has become a family member during that period (regulation 2.07AF(4)). 

27. Thus it is clear that the scheme of the legislation is that up to the time of decision, a person who has become a family member must be notified to the Minister. 

28. It follows in my view very clearly that if a person wishes to make an application after the time of decision, the relationship must itself have commenced after the time of decision. 

29. That is the construction that the Tribunal adopted and in my view it is correct. 

30. The first respondent’s submissions are to like effect and I accept them. 

31. It is common ground that the applicant was not included as a member of the family unit of Ms Bala under either reg.2.07AF(3) or (4) and it is clear, even on his own version of the events (that he became a family member in March 2008), that this was not after the date of the decision to grant Ms Bala a visa. On this ground alone, it is clear that the application must fail.

32. Furthermore, it was open in my view to the Tribunal to reach the credit findings that it did about the applicant.  Although the Tribunal had a substantial amount of material before it, the court book (and the supplementary court book, being the transcript) show that there was on any view material before the Tribunal which left it open to the Tribunal to find that:

    (a) The applicant was well aware of the fact that he was making a false statement to the Department for his own convenience when he participated in October 2008 in Ms Kaur’s application for a student visa, with the applicant as a secondary person.

    (b) That the applicant’s evidence and that of Ms Bala changed during the currency of the hearing as to when it was that their relationship commenced. 

33. I note in relation to this latter finding the Tribunal’s difficulty with the fact that the applicant changed his evidence radically upon receiving the note from his adviser.  It was one well open to it in the circumstances. 

34. Findings of fact are quintessentially matters for the Tribunal and to the extent that the applicant relies upon assertions that the findings of the Tribunal were simply not open to it or utterly misconceived, I reject those submissions.  The Tribunal’s findings were, in my opinion, well open to it on the materials. 

35. It should also be noted that the Tribunal correctly (see paragraph 74 CB248) noted that it was not necessary for the Tribunal to deal in detail with the Regulation 1.15 matters.  The Tribunal did, however, do so and in my view did so unexceptionably.  While it is clear that the applicant and Ms Bala are undoubtedly in a spousal relationship, it is equally clear that it was open to the Tribunal to find that they were not so for a period of one year before the date of application in March 2009. 

36. The final matter raised by the applicant is the question of procedural fairness.  The matters set out to support this proposition are set out in paragraph 66 of the applicant’s written submissions. 

37. Contrary to those submissions, I have already found that the Tribunal correctly applied the reg.572.314.  I have also already found that the Tribunal’s approach to the intervention of the applicant’s representative at the hearing was perfectly open to it.  The other two matters raised are simply merits review, which is not permissible in these circumstances.  I have already dealt with the question of evidentiary findings, in any event. 

38. For these reasons, each and every attack made upon the Tribunal’s decision by the applicant is unsustainable and as I earlier indicated, the application will be dismissed with costs. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date:  21 June 2011