Bangash v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bangash v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 227

File number(s):

SYG 1265 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

23 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal decision was legally unreasonable – whether the Tribunal did not take into account relevant considerations – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 359A, 359C, 360, 376, 476

Migration Regulations 1994 (Cth), reg 1.09A, cl 820.211

Number of paragraphs:

27

Date of last submission/s:

2 February 2021

Date of hearing:

2 February 2021

Place:

Sydney

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Mr T Liu

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

SYG 1265 of 2019

BETWEEN:

AMER ALI BANGASH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

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 the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 May 2019 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 Pakistan. The applicant first arrived in Australia on a student visa. The applicant’s last substantive visa ceased on 15 March 2011.

3. On 20 May 2015, the applicant applied for a Partner visa.

4. On 15 June 2017, the Delegate refused to grant the Partner visa because the Delegate found that the applicant did not meet the criteria under cl 820.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

5. On 20 June 2017, the applicant applied to the Tribunal for a review of the Delegate’s decision.

6. On 16 October 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 16 January 2019. On 10 January 2019, the applicant wrote to the Tribunal requesting an adjournment. On 14 January 2019, the Tribunal wrote to the applicant granting the requested adjournment and rescheduling the hearing for 9 April 2019.

7. Also on 14 January 2019, the Tribunal sent the applicant an invitation to comment or respond to adverse information by 29 January 2019 under s 359A of the Act (“the s 359A letter”). The s 359A letter disclosed the existence of a non-disclosure certificate issued under s 376 of the Act (“the s 376 certificate”) and provided particulars of information covered by the s 376 certificate. The applicant did not respond to that section 359A letter.

8. On 5 April 2019, the applicant notified the Tribunal that he was unable to attend the hearing fixed for 9 April 2019 because of his health. The applicant enclosed in his email to the Tribunal a doctor’s certificate dated 3 April 2019 and a psychologist’s report dated 1 March 2019. The doctor’s certificate asserted that the applicant “was not well enough to attend the interview” and noted that the applicant suffered from anxiety and depression and was on medication and seeing a psychologist. The psychologist’s report noted that the applicant had depression and requested further assistance for him.

9. The applicant did not attend the hearing on 9 April 2019.

10. On 12 April 2019, the Tribunal notified the applicant that in the absence of a response to the s 359A letter, it would proceed to make a decision. The Tribunal again invited the applicant to provide further information by 26 April 2019. The applicant did not provide any response or further information,

11. The Tribunal decided to proceed to determine its decision, delivering the same on 13 May 2019.

12. The Tribunal in its reasons took into account the procedural history and the absence of a response by the applicant to the invitation letter and decided that the applicant had ample opportunity to appear before it and that it would proceed in those circumstances to make a decision. That decision cannot be said to lack an evident and intelligible justification, given the opportunity by the adjournment of the hearing to the date on 9 April 2019 and the applicant’s failure to provide information in accordance with the s 359A letter. The Tribunal’s decision to proceed to make a determination cannot be said to be legally unreasonable.

13. The Tribunal identified the issue as whether the applicant is the de facto partner of the sponsor and whether he satisfied the criteria in Schedule 3 of the Regulations, and, if not, whether there were compelling reasons for applying the criteria. The Tribunal correctly identified the relevant law in that regard.

14. The Tribunal referred to the applicant’s evidence and claims in accordance with the considerations under s 5CB(2) of the Act and reg 1.09A of the Regulations. The Tribunal was not satisfied that at the time of its decision the applicant and sponsor shared day-to-day household expenses, lived together or demonstrated long term commitment as a couple.

15. The Tribunal concluded it was not satisfied on the evidence that the applicant was the de facto partner of the sponsor and found that the applicant did not meet the criteria in cl 820.201(1) of Schedule 2 to the Regulations.

16. The Tribunal then turned to the issue of compelling reasons for not applying the criteria in Schedule 3 of the Regulations. The Tribunal noted that the applicant did not meet the criteria under Schedule 3 of the Regulations because his Partner visa application was not made within 28 days of his last substantive visa. The Tribunal was not satisfied that the applicant and sponsor were in a long term relationship, was not satisfied of the applicant’s claimed fear of harm if returned to Pakistan and did not accept that refusing to grant the Partner visa would cause irreparable harm to the visa sponsor. The Tribunal concluded it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.

17. The Tribunal found that the applicant does not meet cl.820.221(1), cl.820.211(2)(d)(ii) and cl.820.221 of Schedule 2 to the Regulations. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Partner visa.

    BEFORE THE COURT

18. These proceedings were commenced on 23 May 2019.

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

20. On 9 August 2019, a Judge of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions.

21. The applicant provided submissions on 30 March 2020, which the applicant indicated he wished to rely upon, but otherwise put no oral submissions in support of the grounds in the application.

    GROUNDS IN THE APPLICATION:

22. The grounds in the application are as follows:

    1. The Tribunal decision is unreasonable due its failure to adjourn the hearing.

    Particulars

    The applicant provided a report from a psychologist Mr … dated 01 March 2019. Based on the opinion of a professional who is an expert in his field of psychology, the applicant's family Doctor Dr … provided a medical report confirming that the applicant suffers from depression and provided her medical opinion that the applicant would not be in a position to attend the hearing. It is respectfully noted that AAT hearing is an inquisitorial hearing and the applicant should be in a position to effectively participate in the hearing. Based on the medical evidence either the Tribunal should have adjourned the hearing or should have requested the applicant to provide further medical documents to assess his mental health issues. Failure to do that, the Tribunal committed a legal error.

    2. The Tribunal's decision is inherently inconsistent and contradictory. The Tribunal failed to engage in realistic consideration

    Particulars

    The Tribunal in its decision in paragraph 30 that the applicant and the sponsor are not in a de facto relationship. At the same time, the Tribunal in its decision (See para 31-44) proceeded to discuss about whether there are compelling reasons to waive Sch 3 for a partner visa. If the Tribunal formed the view that there is no relationship at the time of the decision, there is no need for the Tribunal to discuss about whether there are compelling reasons to waive Sch 3. If it decided to consider Sch 3, that implicitly noted that the Tribunal formed the view that there is a relationship. In such a situation, the Tribunal decision that there is no relationship is wrong.

    3. The Tribunal failed to comply with s 359 (A) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal noted in its decision that the applicant's substantive visa expired on 15 March 2011 and therefore, he needs to satisfy Sch 3 criteria. It is respectfully submitted that the information that the applicant's last substantive visa expired on 15 March 2011 is an information covered by Section 359 (A) of the Migration Act.

    4. The Tribunal failed to consider relevant considerations:

    Particulars

    a. The Tribunal failed to take into consideration of the long-term relationship since at least since 2013 when considering Sch 3 criteria.

    b. The Tribunal failed to consider the applicant's and the sponsor's fear of their inter-faith relationship as a compelling reason for the applicant to suffer significant issues when assessing Sch 3 criteria.

    GROUND 1

23. In relation to ground 1, the Tribunal identified the history and the earlier application for an adjournment and the absence of provision of information and answer to the s 359A letter. This provides an evident and intelligible justification for the decision of the Tribunal not to adjourn the proceedings in response to the medical information provided by the applicant. The applicant was aware of the hearing date and, in the circumstances, it was open to the Tribunal to proceed to make a determination and it was not legally unreasonable of the Tribunal to not adjourn the matter. Further, the Court accepts the first respondent’s submission that, in any event, the applicant had lost the right to appear at the Tribunal by reason of his failure to provide a response, given the provisions of ss 359C and 360 of the Act. The Court does not accept that the sending of the response to the hearing invitation or the communication in relation to medical reports was a response in accordance with the s 359A letter. Accordingly, even if there were an error in relation to the request for an adjournment, it is not capable of giving rise to a jurisdictional error because the applicant had lost his opportunity to have a hearing by reason of failing to respond to the s 359A letter. No jurisdictional error is made out by ground 1.

    GROUND 2

24. In relation to ground 2, contrary to the applicant’s submissions, there were not inconsistent findings in relation to the issue of compelling reasons by way of the Schedule 3 criteria. It was open to the Tribunal to make the adverse finding at time of decision in respect of the applicant and the sponsor being in a de facto relationship. The Tribunal correctly noted that such a relationship for the basis for the requirement for a Partner visa. The Tribunal found that it was not satisfied that the applicant and sponsor continued to be de facto partners. The Tribunal provided logical and rational reasons in support of that finding in circumstances where the applicant had not respondent to the s 359A letter and where the Tribunal did not have the benefit of further evidence from the applicant. No jurisdictional error is made up by ground 2.

    GROUND 3

25. In relation to ground 3, it appears that the applicant submits that the Tribunal should have found that the information in relation to his visa cancellation was adverse information. The Court does not accept that the cancellation of the visa was information of a kind enlivening the obligation under s 359A of the Act. In any event, the Court accepts the first respondent’s submission. It is clear the information in respect of the cancellation of the visa was in the Delegate’s decision, which the applicant provided in support of the review application. Accordingly, there is no obligation under s 359A(4)(b) of the Act to take any steps in respect of that information. Insofar as the information the subject of the s 376 certificate is concerned, the Court accepts the first respondent’s submission that the s 359A letter complied with the requirements of the Act in relation to that adverse information. It is further apparent that the Tribunal decided to determine the matter otherwise than on the basis of that adverse information. There is no relevant failure to comply under s 359A of the Act. No jurisdictional error as alleged in ground 3 is made out.

    GROUND 4

26. In relation to ground 4, it is apparent that the Tribunal took into account the period of the relationship, as identified in the Tribunal’s reasons as summarised above. Further, this ground appears to be nothing more than an invitation to engage in merits review. The Tribunal found it was not satisfied that the parties at the time of decision were in a de facto relationship. The Tribunal referred to the fact that even if they were in a de facto relationship, they failed satisfy the Tribunal that they continued to be de facto partners at the time of decision. In these circumstances, the Tribunal did not accept the applicant’s premise that there was a long term relationship. In relation to the second particular to this ground, it is apparent that the Tribunal did not accept there was a continuing relationship. Accordingly, the applicant’s submissions in relation to the interfaith relationship as a compelling reason is undermined by the adverse finding made by the Tribunal in respect of it not being a continuing relationship. Ground 4, in substance, is an invitation to engage in a merits review. No jurisdictional error is made out by ground 4.

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

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       23 February 2021