Brar v Minister for Immigration
[2017] FCCA 61
•25 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 61 |
| Catchwords: MIGRATION – Judicial review application – Partner (Residence) (Class BS) visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 66, 357A, 360 and 476 Migration Regulations 1994 (Cth), Sch.2, cll.801.221 and 820.211 |
| Dassanayake v Minister for Immigration & Anor [2016] FCCA 1302 Mansour v Minister for Immigration & Anor [2016] FCCA 2358 Minister for Immigration & Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437; (2009) 113 ALD 88 Pavuluri v Minister for Immigration & Border Protection [2014] FCA 502; (2014) 221 FCR 74; (2014) 142 ALD 256 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534 |
| Applicant: | GURSHARAN SINGH BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 559 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 20 December 2016 |
| Date of Last Submission: | 20 December 2016 |
| Delivered at: | Perth |
| Delivered on: | 25 January 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 559 of 2015
| GURSHARAN SINGH BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1 December 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal dated 27 October 2015 (“2015 Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Partner (Residence) (Class BS) visa (“Partner Residence Visa”) under s.65 of the Migration Act 1958.
Background
The applicant, a citizen of India, lodged an application for a Partner (Temporary) (Class UK Subclass 820) visa (“Temporary Partner Visa”) and a Partner Residence Visa on 18 March 2013: CB 1-24. The applicant was sponsored by his wife, Rosalita Lee Brar (née Marshall): CB 25-34.
On 10 July 2013, the Delegate’s Decision was to refuse the grant of the Temporary Partner Visa: CB 61-72. The Delegate was not satisfied that at the time of the application, or since that time, the applicant and sponsor met the definition of spouse in s.5F of the Migration Act 1958. Accordingly, the applicant did not meet c1.820.211(2) of Sch.2 of the Migration Regulations 1994 (Cth). As the applicant had been refused the Temporary Partner Visa the Delegate found that the applicant did not meet the requirements for a Partner Residence Visa, and therefore also refused the application for a Partner Residence Visa: CB 72.
The applicant subsequently applied to the Tribunal for review in respect of the Delegate's Decision to refuse to grant the applicant the Temporary Partner Visa: CB 73 at [1]. The Tribunal found, by decision dated 15 October 2013: CB 73-74 (“2013 Tribunal Decision”), that it had no jurisdiction to review the Delegate's Decision as the application for review had not been made within 21 days of the applicant being notified of the Delegate’s Decision.
On 16 January 2015, the applicant was re-notified of the Delegate's Decision dated 10 July 2013 insofar as it related to the Partner Residence Visa: CB 75-80.
On 13 February 2015, the applicant lodged an application for review to the Tribunal in respect of the Delegate’s Decision to refuse to grant the applicant the Partner Residence Visa: CB 81-82.
2015 Tribunal Decision
The 2015 Tribunal Decision at CB 352-354 is as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 July 2013 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 18 March 2013 on the basis of his relationship with his sponsor. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.801.221.
3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because his application for the grant of a subclass 820 visa was refused and he had not held a subclass 820 visa.
4. The applicant appeared before the Tribunal on 1 and 29 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Rosalita Brar. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
5. The applicant was represented in relation to the review by his registered migration agent.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
7. The issue in the present case is whether the applicant meets the criteria for the subclass 801 visa. The tribunal considers that this is the proper decision under review.
8. In making the application to the tribunal, the applicant was asked to identify the decision the subject of the review. He identified the decision as the refusal of the subclass 801 visa and attached a copy of the relevant decision in which he was refused a subclass 801 visa.
9. The review applicant submits that the decision under review is the Partner (Temporary) Visa (Class UK 820) and the (Permanent) 801 visa.
10. The tribunal has closely considered this matter and finds that the decision under review is the decision concerning the Subclass 801 visa. This was the decision specifically identified in the application for review and the decision attached to the application for review. The department's re-notification of the decision (dated 16 January 2015) was only issued in respect of the subclass 801 visa and that was the decision that was the subject of this review application. The applicant has previously sought review of the Subclass 820 visa refusal which was finalised in 2013 as a no jurisdiction matter (case 1311783).
11. At the second hearing on 29 September 2015 the applicant was asked by the tribunal if he had ever held a Subclass 820 visa. His evidence was that he had not.
12. Clause 801.221 requires that the applicant has held or holds a subclass 820 visa.
13. The tribunal finds that the applicant does not meet the requirements of cl.801.221 as he has never held and does not hold a Subclass 820 visa. As such, he does not meet the requirements of cl.801.221.
14. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
15. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Grounds of Judicial Review Application
The grounds set out in the Judicial Review Application are as follows:
1. I lodged a Partner (Temporary) (Class UK) subclass 820 (Spouse) through an agent on 18 March 2013 which was refused on 10 July 2013.
2. I appealed the decision which was not accepted.
3. On 16 January 2015 I received by email another RE: Notification of refusal of application for a Partner (Residence) (Class BS) (Subclass 801) visa.
4. I had never applied for this visa as this visa is only processed after Partner (Temporary) (Class UK) subclass 820 (Spouse) is granted.
5. I appealed the decision on 13 February 2015
6. For my appeal my wife (sponsor) and I was invited to a hearing on by 1 September 2015. The Member acknowledged that my wife and I are in genuine relationship and was considering to remit the application to the department for visa grant but was unable to do so as the refusal given by department was for Partner (Residence) (Class BS) (Subclass 801) visa and that cannot be granted without holding Partner (Temporary) (Class UK) subclass 820 (Spouse).
7. So my appeal was affirmed.
8. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the decision of the Department of Immigration and Border Protection and set aside the decision made by Administrative Appeals Tribunal (Migration Review Tribunal). There has been a judicial error by Department of Immigration and Border Protection and AAT.
(Copied from the Judicial Review Application without amendment. The Court will assume that “judicial error” in ground 8 is intended to read “jurisdictional error”.)
Consideration
Grounds 1, 2, 3, 5, 6, and 7
Grounds 1, 2, 3, 5, 6 and 7 do not allege jurisdictional error and they simply set out the background to the Judicial Review Application.
No jurisdictional error is therefore established by grounds 1, 2, 3, 5, 6, and 7.
Ground 4
The applicant's contention that he did not apply for a Partner Residence Visa is wrong. Question two of the visa application form shows that the applicant selected that the application was for both a Temporary Partner Visa and a Partner Residence Visa: CB 1. The applicant signed the declaration and consent with respect to that application: CB 23. The fact that the applicant now says he did not realise he was applying for both subclasses, or that there was a mistake in the form sent to the applicant (an assertion unproven in any event), cannot demonstrate any error, let alone jurisdictional error, by the Tribunal.
No jurisdictional error is therefore established by ground 4.
Ground 8
To the extent that ground 8 seeks to review the Delegate's Decision it must be dismissed because the Court has no jurisdiction to review the Delegate’s Decision: Migration Act 1958, s.476(2) and (4). Further, if the Tribunal Decision is not flawed, it will cure any defects and irregularities in the Delegate's Decision: Pavuluri v Minister for Immigration & Border Protection [2014] FCA 502; (2014) 221 FCR 74; (2014) 142 ALD 256 at [76] per Mortimer J; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534 at [32] per Finn, Mansfield and Gyles JJ.
Insofar as ground 8 contends that the Tribunal ought to have reviewed the Temporary Partner Visa application, the re-notification of 16 January 2015 clearly constituted re-notification in relation to the Delegate’s Decision only insofar as it related to the Partner Residence Visa, and was not a notification in relation to the Temporary Partner Visa. And, even it had not been clear, once a valid notice of the refusal or grant of a visa has been sent pursuant to s.66 of the Migration Act 1958 re-notification cannot occur: Minister for Immigration & Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437; (2009) 113 ALD 88 at [16]-[26], [28] and [38]-[40] per Sundberg J (“Manaf”). Because:
a)re-notification cannot occur; and
b)the 2013 Tribunal Decision had determined that the Tribunal (then the Migration Review Tribunal) had no jurisdiction to consider a review of the Delegate’s Decision concerning the Temporary Partner Visa because the applicant’s request for review was out of time, the Tribunal was functus officio with respect to the Delegate’s Decision concerning the Temporary Partner Visa: Manaf at [40] per Sundberg J,
the 2015 Tribunal Decision cannot be affected by jurisdictional error in relation to the Temporary Partner Visa.
The Tribunal therefore correctly limited its consideration to the refusal of the Partner Residence Visa. Given the applicant did not have a Temporary Partner Visa, which is a necessary condition for the grant of the Partner Residence Visa, the Tribunal Decision was correct in refusing to grant the Partner Residence Visa: Mansour v Minister for Immigration & Anor [2016] FCCA 2358 at [17] per Judge Street (“Mansour”).
With respect to any denial of natural justice or procedural fairness the Court notes that the applicant was only required to be afforded procedural fairness in accordance with the requirements of s.357A of the Migration Act: Dassanayake v Minister for Immigration & Anor [2016] FCCA 1302 at [33] per Judge Lucev (“Dassanayake”) and cases there cited.
The Tribunal invited the applicant to comment on the application and to appear at two hearings: Migration Act 1958, s.360, and the applicant attended both Tribunal Hearings, together with his migration agent: CB 87, 96, 191, 199 and 338. The applicant with the assistance of his migration agent made numerous submissions, and provided supporting material, in relation to the application: CB 107, 113-190 and 206-337 and 342. In these circumstances, and in circumstances where the Tribunal was functus officio with respect to the Temporary Partner Visa, there is nothing to suggest that the applicant was denied procedural fairness by the Tribunal: Dassanayake at [33] per Judge Lucev; Mansour at [16]-[17] per Judge Street.
No jurisdictional error is therefore established by ground 8.
Conclusion and orders
The Court has concluded that none of the grounds of review establish jurisdictional error, and therefore the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 25 January 2017
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