BARUA v Minister for Immigration

[2017] FCCA 1104

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARUA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1104

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.5CB, 360(1), 362B, 368

Migration Regulations 1995 (Cth), reg.1.09A, Sch.2, cls. 820.211, 820.221

Applicant: SHAWON BARUA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 615 of 2016

Judgment of: Judge Manousaridis

Hearing date: 11 May 2017

Date of Last Submission: 11 May 2017

Delivered at: Sydney

Delivered on: 26 May 2017

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 615 of 2016

SHAWON BARUA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed because the application does not raise an arguable case for the relief it seeks. By that application, the applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of the delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa).

Criteria

1. To have been entitled to the grant of the Partner visa, the applicant had to satisfy cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1995 (Cth) (Regulations) at the time of decision. Paragraph (a) of cl.820.211(2) of Schedule 2 to the Regulations required that an applicant be a spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In his application for a Partner visa, the applicant claimed he was the de facto partner of the sponsor, who is an Australian permanent resident (Sponsor).

2. The expression “de facto partner” is defined in s.5CB of the Migration Act 1958 (Cth) (Act) as follows.

   (1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

   De facto relationship

   (2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)they have a mutual commitment to a shared life to the exclusion of all others; and

   (b)the relationship between them is genuine and continuing; and

   (c)they:

   (i)live together; or

   (ii)do not live separately and apart on a permanent basis; and

   (d)they are not related by family (see subsection (4)).

   (3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   Definition

   (4)For the purposes of paragraph (2)(d), 2 persons are related by family if:

   (a)one is the child (including an adopted child) of the other; or

   (b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

   (c)they have a parent in common (who may be an adoptive parent of either or both of them).

   For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

3. Regulations have been made for the purpose of s.5CB(3) of the Act, and these are to be found at reg.1.09A of the Regulations. That regulation identifies matters that must be considered when determining whether an applicant is in a de facto relationship with another person for the purposes of s.5CB(2) of the Act. These include the financial aspects of the relationship, the nature of the household, and the nature of the commitment the parties have to each other.

The applicant’s claim for Partner visa

1. In his application for a Partner visa, which he made on 25 September 2013, the applicant claimed he was in a de facto relationship with the Sponsor. The applicant supported that application with statements from him and the Sponsor. In his statement,[1] the applicant said he met the sponsor while working as a trainee at McDonalds in 2008 and the applicant began to know the Sponsor more in 2010.

   [1] CB49

2. On 16 December 2011, the applicant said he asked the Sponsor to be his girlfriend, after which the applicant and the Sponsor “began to spend time as a couple”, and they “slowly started to meet each other’s friends and got to know each other more”. The Sponsor moved in with the applicant and, on 3 September 2012, he and the Sponsor moved into a larger house which they rented. The applicant referred to a number of activities he and the Sponsor engaged in, and also to the applicant’s meeting the Sponsor’s parents. The Sponsor, in her statement,[2] repeated the substance of what the applicant said in his statement.

   [2] CB48

3. The applicant supported his application with a number of documents. These were a residential tenancy agreement dated 8 October 2013, which showed the applicant and Sponsor as tenants,[3] a letter from a bank addressed to the applicant and the Sponsor confirming the balance of an account the applicant and the Sponsor held,[4] gas and electricity accounts issued to the applicant and the Sponsor,[5] photographs apparently of the applicant and the Sponsor,[6] and cards recording expressions of affection.[7] The applicant also provided statutory declarations by two supporting witnesses.[8]

   [3] CB61-65

   [4] CB47

   [5] CB45, 78, 79, 96, 97

   [6] CB83-95

   [7] CB81

   [8] CB50-55

The delegate’s decision

1. The delegate did not grant the Partner visa because the delegate was not satisfied the applicant and Sponsor were in a de facto relationship. The delegate relied on the following reasons.[9]

   a)The applicant provided no evidence about the financial aspects of the relationship. The evidence of a joint bank account the applicant provided did not disclose the account was used by the applicant or by the Sponsor, or that any money had been transferred to the account by the applicant or the Sponsor. The applicant provided no evidence of any shared assets, the pooling of resources, or the joint contribution to the costs of the household.

   b)Although the applicant had provided a tenancy agreement, utility bills issued jointly to the applicant and to the Sponsor, and two statutory declarations from the applicant’s friends, the applicant provided no documentary evidence to support the applicant’s contention that he and the Sponsor have been in a de facto relationship from 16 December 2011.

   c)The applicant provided no documentary evidence to prove the claim that the applicant met the Sponsor’s family, and there was no convincing evidence that the applicant and the Sponsor presented themselves as a de facto couple to family or the wider community.

   [9] CB106-110

Application for review

1. The applicant applied to the Tribunal[10] for review on 18 December 2014.[11] In a letter sent on 10 December 2015 to the applicant’s migration agent, the Tribunal invited the applicant to attend before the Tribunal on 16 February 2016 to give evidence and present arguments (360 Letter).[12] I find that this letter was sent by the Tribunal pursuant to s.360(1) of the Act. Subject to exceptions that are not relevant, s.360(1) requires the Tribunal to invite an applicant “to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

   [10] At that time, it was the Migration Review Tribunal

   [11] CB131-132

   [12] CB139

2. The 360 Letter attached a document titled “Response to hearing invitation – MR Division” which the letter requested be completed and returned to the Tribunal. The document was completed on 10 December 2015.[13] As completed, the Response stated the applicant, his agent, and the Sponsor would attend the hearing, and did not request the Tribunal take oral evidence from another person.

   [13] CB141

3. By letter dated 25 January 2016 the applicant’s agent informed the Tribunal the applicant had stated the Sponsor was “still in Thailand due to her family commitments”, and asked whether it was possible to reschedule the hearing to a date from 20 April 2016 “so that the partner can attend as well”.[14] By letter dated 27 January 2016 the applicant’s agent informed the Tribunal that the Sponsor was overseas until the middle of April 2016 “due to the death of a family member”.[15]

   [14] CB144

   [15] CB145

4. On 27 January 2017 an officer of the Tribunal informed the applicant’s agent by telephone that the Tribunal has not granted the applicant’s request for the adjournment, but that the Tribunal member was willing to take evidence from the Sponsor overseas. The officer requested the agent provide “an overseas telephone number for the [S]ponsor to contact her during the” hearing.[16] The Tribunal confirmed this by letter to the agent sent by email on 27 January 2016.[17]

   [16] CB146

   [17] CB147-150

5. By letter sent on 16 February 2016, being the appointed day of the hearing, the applicant’s agent said he had received a letter from the applicant stating the applicant could not attend the hearing “due to illness”.[18] The agent attached a medical certificate which stated the applicant was “unfit for his/her usual work/school attendance from 15/02/2016 to 18/02/2016”.[19] The Tribunal agreed to adjourn the hearing to 23 February 2016.[20]

   [18] CB151

   [19] CB152

   [20] CB153-156

6. According to the Tribunal’s reasons for decision, on 24 February 2016 the Tribunal registry sent an SMS to the applicant’s mobile telephone reminding him of the hearing.[21] The applicant did not attend the hearing on 23 February 2016.

   [21] CB163, [12]

The Tribunal’s decision

1. Given the Tribunal had sent the applicant the 360 Letter, and the applicant did not appear at the appointed hearing, then, because of s.362B(1) of the Act, s.362B of the Act applied. Subsection 362B(1A) provides that the Tribunal may do one of two things, one of which is the Tribunal, by written statement under s.368 of the Act, may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal decided to make a decision on the review.[22]

   [22] CB163, [14]

2. The Tribunal noted that cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations require that, at the time the applicant applied for the Partner visa, and at the time of “its decision”, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.[23] The Tribunal then considered if the applicant was the de facto partner of an Australian permanent resident by asking whether the applicant was in a de facto relationship with the Sponsor. The Tribunal concluded it was not satisfied for the following reasons:

   a)None of the documents which the applicant provided with his application corroborated his claim that he first met the Sponsor on 10 March 2008, or that the applicant and the Sponsor began a de facto relationship on 16 December 2011.[24]

   b)There was only limited evidence that a de facto relationship existed at the time the applicant applied for the Partner visa, and there “is absolutely no evidence before the tribunal as to the current state of the relationship”.[25]

   c)There was no evidence or suggestion the applicant and Sponsor have joint ownership of assets, or any joint liabilities. There was evidence of a joint bank account, but there was no evidence whether there had been a pooling of financial resources or that the applicant and Sponsor shared any day-to-day household expenses.[26]

   d)Although there was evidence the applicant and the Sponsor took a joint lease in October 2013, there was no evidence of “the current living arrangements”.[27]

   e)Based on the supporting statutory declarations and photographs the applicant submitted, the Tribunal was prepared to accept that, at the time of application, the applicant and the Sponsor knew each other and undertook joint social activities. There was no evidence, however, that the applicant and Sponsor continue to undertake joint social activities; and there was no information or statements from any of the parties’ respective family members about the relationship.[28]

   f)There was no evidence concerning the nature of the commitment between the applicant and the Sponsor as at the time of the decision.

   [23] CB164, [15]

   [24] CB164, [19]

   [25] CB164, [20]

   [26] CB164, [21]

   [27] CB164, [22]

   [28] CB164, [23]

Grounds of application

1. The application contains the following grounds (errors in original):

   1.The Second Respondent denied me a natural justice by not giving us an enough time for my de-facto partner to return to Australia for the tribunal hearing.

   2.The Second Respondent made jurisdictional error in that its reasons at [23] read in the light of the statutory obligations of the Tribunal under part 7 of the Act do not disclose that the Second Respondent gave actual consideration to those circumstances advance[d] by me as being compelling circumstances.

   3.The First Respondent and the Second Respondent failed to consider the relevant fact of my circumstances which was critical in reaching their decision.

2. In addition to grounds stated in the application, the applicant relied on an affidavit in which he makes the following claims:

   a)The delegate failed to consider the relevant documents and did not give weight to the documents the applicant submitted (Claim (a)).[29]

   b)The Tribunal “failed to consider the gravity of our situation and denied my request to postpone the hearing until my partner return back to Australia, thus denied me a fair hearing rule” (Claim (b)).[30]

   c)The Tribunal’s decision “not to take face to face evidence from my partner about the status of our relationship made me very sick and I lost the confidence of fair hearing at the tribunal” (Claim (c)).[31]

   d)The applicant was unable to attend the Tribunal “due to my health and stress I had due to the matter at the tribunal” (Claim (d))[32]

   e)The Tribunal failed to consider the evidence the applicant had provided in relation to his claim and gave more weight to the finding of the delegate (Claim (e)).[33]

   f)The Tribunal took into account “unsubstantiated belief and personal opinion as the expected acts and omissions of me and accordingly made an adverse conclusion in my matter” (Claim (f)).[34]

   [29] Applicant’s affidavit, [6]

   [30] Applicant’ affidavit, [11]

   [31] Applicant’s affidavit, [12]

   [32] Applicant’s affidavit, [13]

   [33] Applicant’s affidavit, [14]

   [34] Applicant’s affidavit, [15]

3. The applicant, who is not legally represented, made submissions at the hearing. The applicant clarified that the complaint he intended to make in ground 2 of the grounds of application is that the Tribunal failed to consider properly the material the applicant had submitted; and that the complaint he intended to make by ground 3 of the grounds of application was that the Tribunal failed to consider properly the material he had provided and, by not permitting the applicant further time to have the Sponsor available to give evidence, the Tribunal did not have the Sponsor’s evidence available to it.

4. In addition to these matters, the applicant said that he had arranged to have the Sponsor give evidence by telephone but, just before the appointed hearing, the applicant and the Sponsor had a disagreement as a result of which the Sponsor said she was not willing to give evidence by telephone.

5. I will consider each of the claims.

Arguable case?

1. Ground 1 is, in effect, a complaint the Tribunal acted unreasonably in refusing to adjourn the hearing to enable the Sponsor to return to Australia and give evidence before the Tribunal. That is not arguable. The Tribunal indicated it was prepared to obtain evidence from the Sponsor by telephone. The applicant did not inform the Tribunal the Sponsor would be unable to give evidence by telephone, or that there would be any difficulty in the Sponsor giving evidence by telephone, or that there would be any particular advantage to the applicant in having the Sponsor provide evidence in the presence of the Tribunal rather than by telephone.

2. Ground 2 also is not arguable. It is beyond argument the Tribunal considered the material the applicant submitted in support of his application for a Partner visa, and the Tribunal assessed the material by reference to the time the applicant applied for the Partner visa, and the time of the Tribunal’s decision.

3. To the extent ground 3 complains the Tribunal did not consider evidence of the Sponsor, for reasons I have already given, it is beyond argument the Tribunal did consider the material the applicant provided in support of his application for a Partner visa. To the extent ground 3 complains the Tribunal did not have before it evidence form the Sponsor,  that is a matter for which the applicant was unarguably solely responsible. As I have already noted, the Tribunal informed the applicant it was prepared to take evidence from the Sponsor by telephone, and it had requested the applicant that he provide the Tribunal with the Sponsor’s overseas telephone number. For reasons the applicant did not communicate to the Tribunal, he did not provide to the Tribunal such telephone number.

4. I next turn to the claims made in the applicant’s affidavit:

   a)Claim (a) discloses no arguable case of jurisdictional error because the Court does not have jurisdiction to review the decision of the delegate.

   b)Claim (b) repeats the complaint the applicant makes in ground 1 of his grounds of application. For reasons I have already given, that ground is not arguable.

   c)Claim (c) is not arguable. It may reasonably be treated as a claim of apprehended bias. Such a claim, however, is not arguable. For reasons I have given it is beyond argument the Tribunal did not act unreasonably by refusing to adjourn the hearing to the middle of April 2016 as the applicant had requested.

   d)Claim (d) is not arguable. It does not identify the health and stress from which the applicant claims he suffered as a result of the Tribunal’s actions. He does not deny what is stated in the Tribunal’s reasons: namely, that on 22 February 2016 he received an SMS from the Tribunal registry reminding the applicant of the hearing. The applicant does not say he informed or attempted to inform the Tribunal before the appointed hearing of 23 February 2016 that he had any health issues.

   e)Claim (e) is not arguable. For reasons I have given, it is not arguable the Tribunal did not consider the material the applicant provided in support of his application for a Partner visa. To the extent claim (e) complains the Tribunal gave weight or undue weight to the findings of the delegate, that, too, is not arguable. It is beyond argument the Tribunal considered the applicant’s claims for itself based on the evidence that was before it.

   f)Claim (f) appears to claim the Tribunal based its decision on its own opinions and beliefs, rather than the evidence that was before it. That is not arguable. The Tribunal considered the applicant’s claims by reference to the material that was before it. It is beyond argument that the conclusions the Tribunal arrived at were reasonably open to it for the reasons it gave.

1. Finally, I turn to the claim the applicant made at the hearing that he had intended to have the Sponsor give evidence by telephone but, because of a disagreement the applicant and the Sponsor had, the Sponsor refused to do so. Even if this were true (and it is difficult to credit the claim, given the applicant did not at any time provide the Tribunal the contact details of the Sponsor), the applicant did not inform the Tribunal of this difficulty. In those circumstances, it is not arguable the Tribunal made a jurisdictional error by deciding to determine the review after the applicant did not appear at the appointed hearing.

Conclusion and disposition

1. The application discloses no arguable case for the relief it seeks. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 May 2017