Buttar v Minister for Immigration

[2015] FCCA 3176

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUTTAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3176

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Partner Temporary (Class UK) visa – no merit to the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F(2)(a), 360A(4), 477(1)

Migration Regulations 1994 (Cth), reg.1.15A, cl.820.211(2), Sch 2: Part 820

Applicant: SUKHDEEP SINGH BUTTAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 205 of 2015

Judgment of: Judge Hartnett

Hearing date: 20 November 2015

Delivered at: Perth

Delivered on: 20 November 2015

REPRESENTATION

The Applicant: In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The Application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 205 of 2015

SUKHDEEP SINGH BUTTAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore Reasons)

1. Before the Court is an application for judicial review of a decision made by the Migration Review Tribunal (as it then was) (‘the Tribunal’) on 17 April 2015.  The Tribunal affirmed a decision made by a delegate of the First Respondent on 18 December 2013 to refuse to grant the Applicant a Partner Temporary (Class UK) visa (the visa).

2. The grounds of application as contained in the Application are as follows:-

   “1. I, Sukhdeep Singh Buttar, Passport Number L1524631, Date of birth 29/01/1985, declare that i (sic) made an application for visa class UK subclass 820(Partner (temporary)), on 16 September 2011.  I received a notice of refusal of visa 18 December 2013, which states that i (sic) did not satisfy the provisions of migration regulations 1994 (The Regulations).

   2.  After carefully going through the regulations, i (sic) understood that i (sic) satisfied the related migration regulations.  Then i (sic) lodged the application for review of decision made by Department of Immigration and Border Protection, at Migration Review Tribunal(MRT), with an expect ion(sic) that they will make decision in my favour and provide me justice, But (sic) on 3 July 2014, I was refused the visa again as i (sic) did not appear for hearing.  I had genuine reasons for not appearing at the hearing.

   3.   I lodged application in Federal Circuit Court of Australia on 17 September 2014. Then, Honourable Court advised to review the decision of my application to Migration Review Tribunal(MRT).  The hearing date was on 13 April 2015 at Migration Review Tribunal.  The Migration Review Tribunal(MRT) again refused my application on dated (sic) 23 April 2015.

   4.  The main reason behind filing this application is that i (sic) believe there was a jurisdiction error in the decision.  I believe that relevant factors were not considered.  I request Federal Circuit Court to please shed some light in my case and provide justice to me.”

3. As can be seen from a reading of the above grounds, there is, in essence, only one ground stated in this Application, which is that the Applicant alleges that relevant factors were, not considered by the Tribunal.  What those relevant factors were he failed to particularise.  When given the opportunity to make oral submissions to the Court this day, the Applicant was unable to provide any particularisation of that claim.  He submitted to the Court that he thought his marriage was over.

4. On 8 July 2015, Registrar Trott made Orders in the proceedings and being Orders by consent.  Included relevantly in those Orders was Order number 4, that the Applicant shall file and serve on or before 23 September 2015:-

   “3.1 (sic) an amended application giving particulars of the review; and

   3.2 (sic) any further affidavits upon which he intends to rely at the hearing of the matter.”

   It was further ordered on 8 July 2015 in Order number 7, that the Applicant file and serve an outline of submissions not less than 42 days before the hearing.  The Applicant complied with neither of these Orders.

5. The First Respondent seeks the Applicant’s Application be dismissed and that costs in the sum of $6,000 follow the event.  The First Respondent asserts there is no jurisdictional error attending the decision of the Tribunal.  The Respondent has filed a Court book in the proceedings and the contents of same are evidence before the Court.

History

1. The Applicant is a citizen of India who first arrived in Australia on 15 December 2005 holding a Student visa.  He later left Australia before returning on 15 April 2009 holding a further Student visa.

2. On 8 September 2011, the Applicant married Agel Deng (‘the sponsor’), an Australian citizen at Wagga Wagga in New South Wales. On 16 September 2011, the Applicant applied for the visa on the basis of his relationship with the sponsor. At that time, (Class UK) contained only one subclass, Subclass 820 (partner) (temporary). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa, need satisfy only the secondary criteria.

3. On 19 September 2013, the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (‘the Department’) sent a request to the Applicant for further evidence of his relationship with the sponsor.

4. On 18 December 2013, a delegate of the Minister refused to grant the visa on the basis that the Applicant did not satisfy cl.820.211(2) because the parties did not meet the definition of “spouse” having regard to all the circumstances of the relationship, especially those set out in reg.1.15A of the Regulations.

5. On 10 January 2014, the Applicant applied to the Tribunal for a review of the delegate’s decision.  By letter dated 11 June 2014, the Tribunal invited the Applicant and the sponsor to appear before the Tribunal at a hearing on 2 July 2014 and requested that any additional documents be provided by 25 June 2014.  The Applicant did not respond to the Tribunal’s invitation and did not attend the scheduled Tribunal hearing on 2 July 2014.

6. On 2 July 2014, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa.  The Tribunal was not satisfied that the Applicant and the sponsor were in a spousal relationship at the time of the visa application having regard to the lack of supporting evidence and the Applicant’s failure to attend the Tribunal hearing. 

7. On 24 July 2014, the Applicant filed an Application in the Federal Circuit Court for a review of the Tribunal’s decision. On 12 December 2014, Judge Lucev made orders by consent quashing the Tribunal’s decision of 2 July 2014 and remitting the matter to the Tribunal for determination according to law. The Minister conceded that the Tribunal’s decision was affected by jurisdictional error as the Tribunal failed to give the Applicant the prescribed period of notice of the hearing before the Tribunal in accordance with s.360A(4) of the Migration Act1958 (Cth) (‘the Act’).

The Tribunal Hearing

1. Following remittal, the Tribunal, by letter dated 18 February 2015, invited the Applicant to appear before it at a hearing on 13 April 2015, and requested that any additional documents or information be provided to the Tribunal by 6 April 2015.  The Applicant provided no additional documents by that date, but did appear before the Tribunal, differently constituted, on 13 April 2015, to give evidence and present arguments.

2. On 17 April 2015, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa. On 13 May 2015, the Applicant filed this Application for review of the Tribunal’s decision of 17 April 2015. The Application was filed within the requisite time period as specified in s.477(1) of the Act.

3. The Tribunal set out, in paragraph 8 of its Statement of Decision and Reasons (‘the decision record'), that the decision in the present case is whether the Applicant and his spouse are in a spousal relationship.  The Tribunal set out correctly the applicable legislation in paragraphs 9 and 10 of the decision record. The Tribunal said:-

   “9.Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the applicant claims to be the spouse of a sponsor who is an Australian citizen.

   10.“Spouse” is defined in section 5F of the Act and provides that a person is a spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act. There must be a mutual commitment to a shared life as husband and wife to the exclusion of all others. The relationship must be genuine and continuing, and the couple must live together or must not live separately and apart on a permanent basis; section 5F(2)(a) to (d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in rule 1.15A(3) …”

4. The Tribunal accepted the Applicant and the sponsor were validly married as required by s.5F(2)(a) of the Act.

5. The Tribunal then went on to consider whether the other requirements for a spousal relationship were met.  Regarding the nature of the Applicant’s and the spouse’s commitment to each other, the Tribunal recorded the Applicant’s evidence at hearing as follows, and as accurately set out in the First Respondent’s submissions, paragraph 26 to 34:-

   “26.1. he and his sponsor had met on a train in Perth;

   26.2. the sponsor was living in Wagga Wagga at the time and was only in Perth for a week; 

   26.3.they exchanged phone numbers and communicated regularly by phone until they met up in Brisbane for 3 weeks in December 2010, where the applicant proposed;

   26.4.in February/March 2011 the applicant moved to Wagga Wagga to live with the sponsor, and they married in September 2011;

   26.5.in February/March 2011 the applicant returned to Perth and signed a lease for accommodation;

   26.6.the sponsor and her son arrived in Perth to live with him in April 2012;

   26.7.after 6 months he was unable to pay the rent and he broke the lease, at which point the relationship became bitter and he moved in with friends while the sponsor and her son went to live in Sydney;

   26.8. in March 2013 he went to Sydney and lived with the sponsor at her brother’s house for about 6 months, after which time his relationship with his wife broke up and he returned to Perth while the sponsor remained in Sydney;

   26.9.the applicant had not seen the sponsor since he returned to Perth; and

   26.10.at the time of the Tribunal hearing he was good friends with the sponsor and on speaking terms, and they had not divorced, but he was living in Perth and she was living in Sydney.

   27.On the basis of the evidence before it, the Tribunal accepted that the applicant and the sponsor were married in Wagga Wagga in September 2011; accepted that they had not seen each other since the latter part of 2013; and was not satisfied that they had a mutual commitment to the relationship; that they draw companionship and emotional support from each other; or that they see the relationship as a long term one.

   28Regarding financial aspects of the relationship, the Tribunal noted there was no evidence of pooled financial resources or shared assets or liabilities. 

   29Regarding the nature of the household, the Tribunal referred to the applicant’s evidence at the hearing. The Tribunal also recorded that the applicant had provided a copy of a 1 year lease signed by the applicant which listed him as the tenant, and that the applicant indicated that his wife was unable to sign the lease as she was in Wagga Wagga at the time.

   30.The Tribunal noted that there was no corroborating documentation in support of the applicant’s claims that the parties had lived together during the periods claimed and, on the basis of the limited evidence before it, did not accept that the parties had lived together in any of the periods claimed.

   31.Regarding the social aspects of the relationship, the Tribunal referred to brief the statutory declarations sworn by friends of the applicant in September 2011 in support of the applicant’s partner visa application.  Based on the brevity of the statements, and the conclusions reached based on limited factual information, the Tribunal did not place any weight on them.

   32.The Tribunal also referred to photographs of the applicant and sponsor at their wedding and at the Perth Zoo, which the Tribunal considered did not provide any insight into the genuineness of the relationship.  The Tribunal also referred to the absence of any of the sponsor’s family at the wedding, and was not satisfied in the evidence before it that there was social recognition of the relationship by the applicant’s and sponsor’s family and friends.

   33.Given its findings regarding the matters set out in reg 1.15A(3)(a) - (d), the Tribunal was not satisfied that, at the time of application or at the time of decision, the parties were in a spousal relationship, as it was not satisfied that they met the requirements of a married relationship in s 5F(2)(b) - (d) of the Act. On this basis, the Tribunal found that the applicant did not meet cl 820.211(2)(a) or cl 820.221 of sch 2 to the Regulations.

   34.The Tribunal also found that there was no evidence that the applicant met the alternative criteria in cl 820.211(7) - (9) or in cl 820.221(2) and (3) as Sch 2 to the Regulations.

Consideration

1. There is no identification in the application as to the relevant factors which the Applicant asserts were not considered by the Tribunal. It was clearly open to the Tribunal on the evidence before it to make the findings that it did. Indeed, it would be difficult to see how it could have reached any other conclusion. There is nothing unreasonable, illogical or irrational in the Tribunal’s findings and conclusions. This application is really one of merits review, if it is even that, and of course that is impermissible for the Court. The Tribunal correctly stated and applied the law. The Tribunal accorded to the Applicant procedural fairness and complied with the requirements as set out in Division 5 of Part 5 of the Act. There is no merit to the application and it shall be dismissed with costs in accordance with the scale as set out in the Federal Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 27 November 2015