CHOI v Minister for Immigration

[2017] FCCA 2455

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2455

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal misapplied the regulations – whether the Tribunal failed to genuinely consider the facts and circumstances – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994 (Cth), Sch.2, cl.820.211, Sch.3, criteria 3001, 3003, 3004.

Applicant: JINHEUNG CHOI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1284 of 2017

Judgment of: Judge Street

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Sydney

Delivered on: 9 October 2017

REPRESENTATION

Solicitors for the Applicant: Ms E Anang
Christopher Levingston & Associates

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Leave to the applicant to rely upon the amended application annexed to the submissions filed on 25 September 2017 and dispense with the need for the filing of an electronic copy.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1284 of 2017

JINHEUNG CHOI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

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 a decision of the Administrative Appeals Tribunal (“The Tribunal”) made on 19 April 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of South Korea. The applicant first arrived in Australia on 3 August 2003 on an Electronic Travel Authority (subclass 976) visa. The applicant was granted three further ETA subclass 976 visas, the last of which expired in 9 March 2011. The applicant then remained unlawfully in Australia from 9 March 2011 until 8 October 2014. The applicant made the application for the Partner (Temporary) (Class UK) subclass 820 visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 8 October 2014.

The delegate’s decision

1. On 3 August 2016, the delegate refused to grant the applicant the visas having identified the criteria under cl.820.211 of the Migration Regulations 1994 (“the Regulations”). The delegate identified that to meet the requirements of subclause 820.211(2)(d)(ii) the applicant had to satisfy each of Schedule 3 criteria 3001, 3003 and 3004.

2. The delegate found the applicant failed to meet criteria 3001 and, accordingly, proceeding to consider whether there were compelling reasons for not applying the Schedule 3 criteria. The delegate made reference to the sponsor suffering from depression and insomnia and referred to a medical certificate dated 4 July 2016. The delegate was of the view the medical certificate was obtained for the purpose of strengthening the visa application. The delegate made reference to the applicant remaining unlawfully in Australia after the subclass 976 visa ceased on 9 March 2011.

3. The delegate was not satisfied that the applicant’s circumstances justify a waiver of the Schedule 3 criteria and found that the applicant failed to meet the relevant criteria under cl.801.221.

The Tribunal’s Decision

1. The applicant applied for review on 15 August 2016. By letter dated 28 March 2017, the applicant was invited to attend a hearing on 19 April 2017. The applicant appeared on that date to give evidence and present arguments and was represented by her migration agent. The Tribunal identified the background to the application for review.

2. The Tribunal identified it was not in dispute that the applicant in the present case did not have the substantive visa at the time of application. The Tribunal found that the applicant did not enter Australia as the holder of a Subclass 995 (Diplomatic) visa or a special purpose visa. The issue in the present case was whether the applicant satisfied the Schedule 3 criteria unless there were compelling reasons for not applying those criteria.

3. The Tribunal identified that the applicant’s last substantive visa expired in March of 2011 and then, accordingly, The Tribunal found the applicant did not meet the criteria of cl.820.211(2)(d)(ii).

4. The Tribunal identified the applicant is required to satisfy the Schedule 3 criteria, 3001, for the purpose of cl.820.211(2)(d)(ii).

5. The Tribunal was not satisfied that the application was made within 28 days of the relevant day and found that the applicant failed to meet the criteria under item 3001. The Tribunal identified that in those circumstances the Tribunal will need to consider whether there are compelling reasons for not applying the Schedule 3 criterion. The Tribunal made express reference to the applicant staying in Australia unlawfully because she was looking after nieces and nephews and had nothing to go back to and time had passed.

6. The Tribunal did not accept the applicant’s explanations for her unlawful stay. The Tribunal made express reference to the written submissions to the delegate. The Tribunal identified it was prepared to accept at face value that the applicant may be in a genuine relationship with the sponsor and that such a relationship may be a long-term one. The Tribunal, however, did not accept that in the circumstances of the case this is sufficient to establish the existence of compelling reasons for the waiver.

7. The Tribunal made express reference to finding in the circumstance of this case that the Tribunal did not consider the existence of a long-term genuine relationship between the applicant and sponsor even if one was established constitutes a compelling reason for the waiver. The Tribunal then made reference to the applicant’s evidence as to the sponsor suffering depression and insomnia at the time they started the relationship and the claim that the symptoms of the sponsor improved after the relationship started.

8. The Tribunal referred to the sponsor’s evidence that he used to live on his own and suffered from depression. The Tribunal made reference to the applicant providing medical evidence relating to the sponsor and the Tribunal expressly identified accepting those claims. The Tribunal continued, however, to say that the applicant’s and sponsor’s evidence to the Tribunal suggest that the sponsor’s condition improved since the relationship started.

9. The Tribunal observed the evidence indicates the sponsor has received effective treatment for his condition and will be able to continue such treatment if necessary. The Tribunal found the medical evidence does not support the contention that the sponsor’s depression or mental health would worsen unless the applicant is able to remain in Australia. The Tribunal identified the ability of the parties to communicate as frequently as they wish and that any separation is likely to be temporary.

10. The Tribunal was not satisfied on the evidence before it that the sponsor’s condition will be adversely affected unless the waiver is applied. The Tribunal identified that it was prepared to accept that the parties rely on each other for comfort and emotional support. The Tribunal observed that emotional and physical support is a normal indicia of a marriage that would be common to any marriage. The Tribunal identified that it was not satisfied that the circumstances of the present case are different to the extent that they provide support so as to amount to compelling reasons for the waiver.

11. The Tribunal accepted that some hardship would be caused to the applicant and the sponsor if the waiver was not applied because the applicant would have to leave Australia for a period of time. The Tribunal, however, was not satisfied that the degree of hardship is such as to give rise to compelling reasons for the waiver. Having considered the totality of the circumstances, the Tribunal was not satisfied there are compelling reasons for not applying the Schedule 3 criteria. The Tribunal found the applicant failed to meet cl.820.211(2)(d)(ii) and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the amended application are as follows:

   2. The application is infected by jurisdictional error in that the second respondent has misapplied the Schedule 3 requirement embedded in cl. 820.211 of the Regulations by failing to give all of the Applicant's relevant facts and circumstances a proper and genuine consideration on its merits.

   Particulars

   (a) The genuine and proper consideration of the personal circumstances of the applicant and of his sponsor constitute “compelling” circumstances within the “concession” embedded in Schedule 3 at cl. 820.211 of the Migration Regulations.

   3. The second respondent misunderstood the operation of cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) and committed jurisdictional error. by erroneously finding (at paragraph 21 of the decision record) that the existence of a long term genuine relationship between the applicant and the sponsor did not constitute a “compelling reason” for waiving the Schedule 3 criteria. There is no statutory basis for the Tribunal's conclusion.

2. Ms Anang, the solicitor for the applicant, confirmed that Ground 1 was not pressed.

Consideration

Ground 2

1. In relation to Ground 2, Ms Anang argued that the Tribunal had failed to engaged with the applicant’s evidence in relation to the death of her husband and her loneliness prior to the relationship with the sponsor and had failed to take into account the parties living with each other rather than just referring to the relationship.

2. Ms Anang took the Court to the evidence of the doctor, being the medical report dated 4 July 2016, referring to the sponsor’s symptoms improving after living with a new lady. Ms Anang took the Court to other references in relation to the sponsor of the applicant living together and the improvement in the sponsor’s mental health. Ms Anang submitted that there was no reference in the Tribunal’s reasons to the applicant’s loss of her husband, which was identified in the supporting evidence, and the loneliness that she was subject to prior to that relationship.

3. I do not accept the submission that the Tribunal failed to give proper and genuine consideration to the applicant and sponsor’s evidence in determining whether there were compelling reasons not to apply the Schedule 3 criteria.

4. In relation to the difference between living with each other and the relationship between the applicant and the sponsor, it is apparent that the Tribunal expressly referred to the sponsor suffering from depression and insomnia at the time of the start of the relationship, and the improvement in the sponsor’s wellbeing thereafter, as well as expressly referring to the medical evidence.

5. There was no failure by the Tribunal to give proper and genuine consideration to the applicant’s evidence in that regard. The distinction between the improvement as a result of the relationship and the improvement by reason of living together is, in substance, reading the Tribunal’s reasons with a keen eye for error. It is apparent on a fair reading of the Tribunal’s reasons that the reference to the relationship plainly subsumed the relationship and the living together in relation to the improvement of the sponsor’s wellbeing.

6. Whilst I accept that the Tribunal did not refer to the applicant’s former partner’s death. The Tribunal accepted that the sponsor and the applicant provide each other with comfort and emotional support. That finding subsumed the applicant’s prior state of wellbeing. It is not necessary for the Tribunal to refer to every piece of evidence.

7. There was no failure by the Tribunal to engage in a proper and genuine consideration of the merits of the applicant’s claims and evidence in determining whether there were compelling reasons for waiving the Schedule 3 criteria.

8. In substance, Ground 2 is an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, Ms Anang relied upon the written submissions, which suggested that the Tribunal had engaged in error by reason of treating the existence of a long-term relationship as a matter that could not give rise to compelling reasons. The Tribunal’s reasons should not be read as adopting any such rule or principle. The Tribunal’s reasons expressly refer to the circumstances of the present case.

2. The circumstances of the present case include the applicant’s migration history and in particular, the applicant’s unlawful presence in Australia as identified by the Tribunal. There was no misunderstanding by the Tribunal of the criteria and there was no jurisdictional error by the Tribunal in finding, in the present case, that there were not compelling reasons.

3. Ground 3 is, in substance, again, an invitation to this Court to engage in impermissible merits review. No jurisdictional error as alleged in Ground 3 is made out.

Conclusion

1. The amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 October 2017

CORRECTIONS

1.Cover sheet and Orders: Page 1, changed “Administrative Appeals The Tribunal” to “Administrative Appeals Tribunal”.

2.Reasons for Judgment: Page 1, changed “Administrative Appeals The Tribunal” to “Administrative Appeals Tribunal”.

3.Reasons for Judgment: Page 1, changed “Administrative Appeals The Tribunal” to “Administrative Appeals Tribunal”.