Bang v Minister for Immigration

[2020] FCCA 3273

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANG v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3273

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner visa – whether the Tribunal gave proper consideration to the applicant’s claims and evidence – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), schs.2, 3

Applicant: BA VU BANG

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2823 of 2017

Judgment of: Judge Street

Hearing date: 1 December 2020

Date of Last Submission: 1 December 2020

Delivered at: Sydney

Delivered on: 1 December 2020

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Andy Pham Lawyers

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: MinterEllison

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. Leave is granted to the applicant to rely upon the amended application filed 13 March 2020.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 1 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2823 of 2017

BA VU BANG

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 11 August 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa (“the Partner visa”). 

2. The applicant applied for the Partner visa on 15 October 2014 in circumstances where the applicant arrived in Australia on 24 October 2013, and his subclass 573 visa (Higher Education visa) was cancelled on 18 September 2014. 

3. In the Partner visa application, the applicant claimed that he and the sponsor met on 24 December 2013, and they were committed to a shared life together from 14 February 2014 and were married on 28 September 2014, with the application lodged on 15 October 2014. 

4. The Delegate found that the applicant failed to meet the criteria for the grounds of the Partner visa. The applicant applied for review. 

5. The applicant appeared before the Tribunal to give evidence and present arguments on 6 June 2017. 

6. The Tribunal identified the background to the application for review, including the background in respect of when the visa was cancelled and when the applicant applied for the Partner visa. 

7. The Tribunal identified the criteria in sch 3 of the Migration Regulations 1994 (Cth) (“the Regulations”) that the applicant had to satisfy, including cls 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying that criteria under cl 820.211(2)(d) of sch 2 of the Regulations.

8. The Tribunal identified that the applicant did not have a substantive visa at the time of application and turned to consider whether or not the applicant met the sch 3 criteria.

9. Relevantly, the Tribunal found that the applicant did not meet the cl 3004 criteria which provides as follows: 

   If the applicant:

   (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (b)(b)  entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and                 

   (d)there are compelling reasons for granting the visa; and

   (e)the applicant has complied substantially with:

   (i)    the conditions that apply or applied to:

   (A)  the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

   (B)  any subsequent bridging visa; or

   (ii)  the conditions that apply or applied to:

   (A)  the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

   (B)  any subsequent bridging visa; and

   (f)either:

   (i)    in the case of an applicant referred to in paragraph (a)--the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

   (ii)  in the case of an applicant referred to in paragraph (b)--the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

   (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

10. The Tribunal, having found that the applicant did not meet the 3004 criteria, then turned to whether there are compelling reasons not to apply the sch 3 criteria.

11. The Tribunal expressly referred to the emotional impact on the parties in terms of the effect of separation, and also addressed the effect on the financial circumstances, and referred to the emotional difficulties that may arise during the separation. The Tribunal referred to the longevity of the relationship, and expressly referred to having considered all the above issues. A fair reading of the Tribunal’s reasons reflects consideration of the identification of when the applicant applied for the Partner visa and when the applicant’s last substantive visa expired. 

12. The Tribunal returned to the understandable unhappiness of the parties in terms of the applicant having to apply offshore and expressly identified that it would be for a limited period, and was satisfied that the parties can continue to provide each other with emotional support when they are apart using the range of communication tools that are available. 

13. It was in those circumstances that the Tribunal found that there are compelling reasons for not applying the sch 3 criteria, and that the applicant failed to meet the criteria in cl 820.211(2)(ii).

Before the Court

1. The grounds in the application are as follows:   

   1.An issue for the Administrative Appeals Tribunal ("the Tribunal"), in considering for the purpose of clause 820.211(2)(d) whether "the applicant satisfies Schedule 3 criteria ... 3004", was whether the Tribunal was "satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control": criterion 3004(c). The Tribunal found at (21 ]-(27] that the applicant did not satisfy criterion 3004{c) and therefore did not satisfy criterion 3004. There were a number of factors or reasons which led to the situation where, by the time the applicant lodged a partner visa application on 15 October 2014, he no longer held a substantive visa. Some of these factors were within the applicant's control. Others of these factors were beyond the applicant's control. In a case of this type:

   a)Paragraph (c) in criterion 3004 requires a decision-maker to consider the totality of factors in order to decide whether "the applicant is not the holder of a substantive visa because of factors beyond the applicant's control".

   b)It is not permissible or appropriate for the decision-maker to identify a single factor which was not beyond the applicant's control, not have regard to a number of factors which were beyond the applicant's control, and then conclude that the applicant does not satisfy paragraph (c).

   c)The Tribunal in the present matter took the approach in (b) above. The Tribunal in the present matter should have taken the approach in (a) above. By taking the approach in (b) above when it should have taken the approach in (a), the Tribunal misconstrued the statutory provision. This is a jurisdictional error.

   2.The Tribunal found at [43] that it "is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria". For the following reasons, the Tribunal fell into jurisdictional error in making this finding:

   a)The time between the date the applicant last held a substantive visa and the date the applicant lodges a visa for the subject of Schedule 3 criteria is a matter relevant to a consideration of whether “there are compelling reasons for not applying those criteria" and, at least where the time is short, must be taken into account in deciding whether "there are compelling reasons". The Tribunal failed to take this time into account, which is a jurisdictional error.

   b)The Tribunal did not give proper and genuine consideration to the length of time the applicant would be required to remain in Vietnam while his offshore partner visa application was processed and the consequential hardship on the applicant and sponsor.

2. Mr Zipser, counsel on behalf of the applicant, submitted that the Tribunal in its reasons had not addressed the totality of the factors beyond the applicant’s control in its reasons, which Mr Zipser contended was a requirement of cl 3004. 

3. Clause 3004 refers, in paragraph (c), to “the applicant is not a holder of a substantive visa because of factors beyond the applicant’s control”.  Mr Zipser submitted that in the present case, there was not an identification of the totality of factors, some of which Mr Zipser contended were beyond the applicant’s control. Mr Zipser, in that regard, referred to the trajectories of the applicant’s separation and divorce and the duration of that process as being a matter that was beyond the applicant’s control. 

4. It is the case that the language of cl 3004 should be given its ordinary and natural meaning. This requires considerations of whether the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control. That means that the causative factors must be beyond the applicant’s control. 

5. The cessation of the student visa was clearly within the applicant’s control. 

6. Having found that the cessation of the student visa, in terms of compliance with its conditions, was not beyond the applicant’s control, the Tribunal was not required to identify, as Mr Zipser contended, the totality of all the factors in a weighing exercise under cl 3004(c). 

7. Once the Tribunal had identified a causative factor beyond the applicant’s control in terms of the applicant no longer being the holder of a substantive visa, the Tribunal was able to make the finding as it did that the applicant did not meet the criteria under cl 3004. 

8. No jurisdictional error as alleged in ground 1 is made out. 

9. In relation to ground 2, Mr Zipser advanced two arguments as to why there was not a proper and genuine consideration given to the applicant’s claims and evidence in respect of compelling reasons. 

10. The first was because of the brief period between the expiry of the applicant’s student visa and the application for the Partner visa.  That brief period was apparent on the Tribunal’s own reasons. The Tribunal’s reasons expressly refer to having considered all of the above issues. The Tribunal’s reasons are not to be read with a keen eye for error. That clearly includes the limited period that was identified by the Tribunal.  There was no reason for the Tribunal to have to further expressly identify that limited period, particularly, as it was properly conceded, no submission was advanced to the Tribunal in relation to limited time period. 

11. No jurisdictional error arises by reason of ground 2 in relation to the limited time period, because without having raised the same as a relevant consideration, the identification of the time period in the Tribunal’s reasons reflects a sufficient and proper and genuine consideration of the totality of the evidence in considering the issue of compelling reasons. 

12. The second argument advanced by Mr Zipser is that the Tribunal did not have a real and meaningful engagement with the hardship that would be caused upon the parties. It was submitted that because the Tribunal simply referred to a limited period and did not identify the actual time period, there was no proper and genuine engagement with the applicant’s claims and evidence. 

13. It is clear that the Tribunal was well alive to the period of separation that may arise. It was not necessary for the Tribunal to make an actual finding as to that period.  The Tribunal clearly turned its mind to the consequence of the impact of the separation, which the Tribunal found would be limited, and took into account the range of communication tools that were available. There was no failure by the Tribunal to have a proper and genuine engagement with the applicant’s claims and evidence in relation to compelling reasons. 

14. No jurisdictional error as alleged in ground 2 is made out. 

15. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-five (28) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 February 2021