Brahmbhat v Minister for Immigration and Border Protection
[2022] FedCFamC2G 1020
Federal Circuit and Family Court of Australia
(DIVISION 2)
Brahmbhat v Minister for Immigration and Border Protection [2022] FedCFamC2G 1020
File number(s): SYG 3584 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 21 November 2022 Catchwords: MIGRATION – partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision – no matter of principle. Legislation: Migration Act 1958 (Cth) ss 5F, 379A, 474
Migration Regulations 1994 (Cth) r 1.15A, sch 2 cls 820.211, 820.212, 820.221
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 16 Date of hearing: 21 November 2022 Place: Sydney For the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms S. Sangha (Mills Oakley) ORDERS
SYG 3584 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: URVIN BHUPENDRABHAI BRAHMBHAT
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
21 November 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $5,400.00.
3.The name of the first respondent in the Court record be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of India who arrived in Australia on 25 October 2008. On 31 October 2013 he lodged an application for a Partner (Temporary) (Class UK) visa with what is now the Department of Home Affairs. On 4 November 2016 the applicant's application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.
In this judicial review proceeding the Court cannot reconsider the applicant’s visa application. The Court's task is to determine whether the Tribunal's decision was affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) ("Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all material times, cl.820.211 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) provided relevantly as follows:
820.21—Criteria to be satisfied at time of application
820.211
(1) The applicant:
...
(b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
...
At all material times, s.5F of the Act provided:
5F Spouse
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(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.
Regulation 1.15A of the Regulations relevantly provides that:
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
...
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
BACKGROUND FACTS
The facts alleged in support of the applicant's application for a Partner (Temporary) (Class UK) visa were summarised by the Minister in his written submissions as follows:
9. On 3 June 2015, the Department invited the applicant to provide further information in support of his Partner visa application (CB 78-87). No further information was provided.
10. On 24 May 2016, the Department extended a further invitation to the applicant to provide more information in support of his Partner visa application (CB 88-96).
11. On 25 May 2016, the Department contacted the applicant and sponsor separately by phone to discuss the application. The applicant and sponsor confirmed that the sponsor had moved to Queensland eight months prior, and the applicant remained in Sydney. The sponsor also indicated she did not know the applicant’s residential address in Sydney, and she never lived with the applicant due to a lack of finances (CB 132).
12. On 25 May 2016 at 5:27pm, the sponsor responded to the Department’s invitation to provide further information and indicated that her brother had fallen into financial hardship and confirmed she had moved from Parramatta to Queensland (CB 97). The sponsor also attached a copy of her national police clearance certificate (CB 99), the applicant’s national police clearance certificate (CB 100), two pages of the applicant’s Partner visa application (CB 101-102), and a joint bank account statement from Westpac Bank (CB 103).
13. On 25 May 2016 at 6:27pm, the sponsor sent a further email to the Department. In the email, the sponsor recanted her earlier claim that she never lived with the applicant and instead submitted that she lived with him for one and a half years, but once she had lost her job the couple were required to live separately. The sponsor stated that in February 2015 she moved from Parramatta, New South Wales to Townsville, Queensland and “when you live with someone for a long time some times you forget that there because life gets busy and when you do have that moment when life is still you remember who your living with (silly I know but it does happen)” (sic) (CB 104). The sponsor also provided two photographs of her and the applicant (CB 105-106).
14. On 5 July 2016, the Department asked the applicant to provide further evidence of his relationship with the sponsor. Specifically, the applicant was asked to provide personal particulars for character assessment; relationship history statements and evidence of his relationship with the sponsor (CB 107-115).
15. On 26 August 2016, the applicant provided the Department: an unsigned, undated statutory declaration of Rachel McMillan (CB 116-117); a copy of the applicant’s marriage certificate (CB 118-119); various bank statements (CB -120-123); an undated and unsigned typed statement from the sponsor (CB 124); and a police clearance certificate dated 16 June 2015 (CB 125).
16. On 4 November 2016, a delegate of the Minister refused to grant the applicant a Partner visa (CB 126-155). The delegate referred to the marriage certificate dated 17 October 2013 and was satisfied the applicant was the sponsor’s spouse. The delegate referred to the telephone conversations the applicant and sponsor had with Department staff on 25 May 2016 and found their answers contradicted their written evidence in relation to their living conditions (CB 133-134). As the applicant had failed to provide any further evidence to support a claim that he had been living with the sponsor as a couple, the delegate was not satisfied the nature of the household supported the existence of a genuine spouse relationship. The delegate also referred to the evidence provided by the applicant in support of the couple’s social aspects but found the nature of their relationship was unclear (CB 134). Having assessed the applicant’s supporting evidence in relation to the matters prescribed under reg 1.15A, the delegate was not satisfied the applicant was in a spousal relationship with the sponsor as defined under s 5F and therefore he did not satisfy cl 820.211 or cl 820.221 of the Regulations. On that basis, the delegate refused to grant the applicant the visa (CB 135).
...
18. On 21 September 2017, the applicant was invited to attend a hearing before the Tribunal scheduled for 16 October 2017 (CB 167-174).
19. On 12 October 2017, the applicant’s representative wrote to the Tribunal and requested the hearing be postponed because the applicant and his sponsor were sick (CB 175). In support of his adjournment request, the applicant provided a medical certificate which stated that he was “unable to attend his work from 12/10/2017 to 16/10/2017 inclusive because of Viral illness” (CB 176).
20. On 13 October 2017, the Tribunal acceded to the applicant’s request for a postponement of the hearing (CB 177-184). The hearing was rescheduled to 19 October 2017 (CB 179).
21. On the same day, the applicant’s representative responded to the Tribunal and indicated that the applicant was “at least looking for 2 to 3 months extension to recover well and prepare for the hearing” (sic) (CB 185-186). The Tribunal refused the applicant’s further request for a postponement of the hearing (CB 187-194).
22. On 18 October 2017, the applicant representative wrote to the Tribunal again and repeated the request for the Tribunal to postpone the hearing. The applicant’s representative stated that the sponsor was “in Queensland at her parents’ house” and that “she has a nearly one year old baby” (CB 195-196). On 19 October 2022, the Tribunal contacted the applicant’s representative by telephone and confirmed that the request for a postponement had been refused (CB 198).
23. On 19 October 2017, the applicant failed to attend the scheduled hearing before the Tribunal (CB 199-202).
I adopt that summary.
The Tribunal's decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal affirmed the delegate's decision. The Tribunal's findings and reasons were relevantly summarised by the Minister in his written submissions in the following terms which I also adopt:
25. The Tribunal found the issue for determination was whether the parties were in a spousal relationship as defined by cll 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations (CB 210, [6]).
26. The Tribunal noted the statement made by the applicant’s representative that the sponsor had a nearly one year old baby and was unable to travel to Sydney for the hearing due to her baby. The Tribunal found there was no evidence that there was a child of the relationship pursuant to cl 820.211(3) of Schedule 2 to the Regulations (CB 210-211, [13]).
27. The Tribunal found no evidence of any type was provided to it to support any of the assertions of the review applicant’s representative for advocating for a further postponement of the scheduled hearing. The Tribunal was satisfied there was no evidence or claim that the sponsor’s claimed child was a child of the relationship (CB 211, [14]).
28. The Tribunal was satisfied the applicant had been validly invited to appear before it pursuant to s 379A(5) of the Act and in those circumstances proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it pursuant to s 362B of the Act (CB 211, [16]-[17]).
29. The Tribunal confirmed cl 820.211(2)(a) and cl 820.211 of Schedule 2 to the Regulations required the applicant to be the spouse of an Australian citizen or permanent resident both at the time of the application and at the time of the Tribunal’s decision (CB 212, [19]).
30. The Tribunal found the applicant and sponsor had known each other since 2009, had been friends since 2011 and were validly married on 30 September 2013. The Tribunal was satisfied that the validity of their marriage was not in dispute on the basis of a certified copy of their marriage certificate provided by the applicant. The Tribunal found the parties were married to each other under a marriage that was valid as required by s 5F(2)(a) of the Act (CB 212, [21]).
31. The Tribunal found the applicant had provided some evidence to the department at the time of the application in 2013 as well as some additional evidence in August 2016. However, the Tribunal was satisfied that since that time, no evidence whatsoever had been provided to it that indicated the applicant and sponsor remain, or were currently in a spousal relationship. The Tribunal found there was no evidence in relation to the financial aspects of their relationship, the nature of their household, any social aspects of the relationship or the nature of the couple’s commitment to each other (CB 212, [23]).
32. The Tribunal was unable to be satisfied that at the time of the decision, the couple were in a spousal relationship and therefore there was no evidence before the Tribunal that the applicant continued to satisfy cl 820.211(2) at the time of the decision (CB 212, [24]).
33. The Tribunal was satisfied the applicant did not meet any of the alternative criteria in cls 820.211(7)-(9), 820.212(2) or 820.212(3) of Schedule 2 to the Regulations. As a result of its earlier findings in relation to whether the applicant was in a spousal relationship with the sponsor at the time of the decision, the Tribunal found it did not need to determine whether the applicant satisfied the time of application criteria in cl 820.211(2) of Schedule 2 to the Regulations (CB 212, [25]-[26]).
34. The Tribunal was not satisfied that the requirements of ss 5F(2)(b)-(d) of the Act were met and therefore found the applicant did not meet cl 820.221 of Schedule 2 to the Regulations. On that basis, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a Protection visa (CB 213, [27]-[32]).
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1. I believe any relationship is genuine.
2. My wife is my sponsor.
3. Reasons for refusal are not clear.
CONSIDERATION
The first two grounds of the application raise no issue of jurisdictional error on the part of the Tribunal. They reflect the position advanced by the applicant in his address to the Court today, that the Tribunal reached factual decisions with which he disagreed. As I explained during the course of the hearing and earlier in these reasons, the Court cannot rehear the application for a visa. The first two grounds provide no basis to conclude that the Tribunal's decision was affected by jurisdictional error.
The allegation made in the third ground of the application, that there was a lack of clarity in the Tribunal's reasons, suggests that the course of the Tribunal's reasoning overall has not been exposed in its decision record. On the facts, I am not persuaded that that is so. It is also not apparent that the Tribunal has failed to deal with particular arguments or evidence in a way that suggests that its course of reasoning has not been exposed in relation to individual issues. The third ground of the application does not identify any jurisdictional error on the Tribunal's part.
In his address to the Court today, the applicant also said that the Tribunal would not grant him the adjournment of his hearing that he sought, but he did not point to anything that might suggest that the Tribunal's discretion in that regard miscarried. The reasons that the Tribunal gave for proceeding to decide the review do not suggest that the refusal to delay the hearing and thus the decision on the review represented a miscarriage of discretion.
CONCLUSION
I am not persuaded in this case that jurisdictional error on the part of the Tribunal has been demonstrated.
Consequently, the application will be dismissed.
Costs
As the application is to be dismissed, the Minister has sought an order for his costs. There is nothing in the conduct of this proceeding or anything that has been put to me that would suggest that costs should not follow the event as they would in the ordinary course. The Minister seeks an amount of $5,400 of its costs and I am satisfied that that is a reasonable amount to award him, mainly that it is considerable that it is lower than the amount to which he would be entitled under the Court’s scale.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 6 December 2022
0
1
0