Copland v Minister for Immigration
[2006] FMCA 39
•20 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COPLAND v MINISTER FOR IMMIGRATION | [2006] FMCA 39 |
| MIGRATION – Review of decision by the Migration Review Tribunal – applicant did not hold a substantive visa at the time of applying for a spousal visa – schedule 3 criteria in the Migration Regulations applied – whether ‘compelling reasons’ existed for not applying Schedule 3 criteria. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s 474 Migration Regulations 1994 (Cth), Schedule 2 and 3 |
| Boakye-Danquah v Minister for Immigration [2002] FCA 438 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration v Dunne [1999] FCA 204 Minister for Immigration v Yusef (2001) 206 CLR 323 Minister for Immigration v Rajalingam [1999] FCA 719 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 |
| Applicant: | DONNA LYNN COPLAND |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1654 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 5 October 2005 |
| Date of Last Submission: | 5 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Krohn |
| Solicitors for the Applicant: | Zolis Lawyers & Consultants |
| Counsel for the Respondent: | Mr R. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application dated 20 December 2004 be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1654 of 2004
| DONNA LYNN COPLAND |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
20 December 2004 seeking judicial review of the decision of the Migration Review Tribunal on 25 November 2004 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a Partner (Temporary) (Class UK) visa or a Partner (Residence) (Class BS) visa.
The history
The applicant is a citizen of the United States of Australia, and lodged an application for permanent residence in Australia on spouse grounds with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) on 31 July 2003.
The basis for the applicant’s application for the spousal visas (permanent and temporary) was her relationship with and marriage to an Australian citizen (“the sponsor”) in Melbourne on 28 February 2003. Since first entering Australia on 16 November 2000, the applicant had held multiple Electronic Travel Authority (“ETA”) visas of a short-term nature. At the time of lodging her application for spousal visas on 31 July 2003, the applicant was present in Australia but was not the holder of a valid substantive visa. The applicant claimed that she had misunderstood the conditions of the ETA visa which was granted on 10 January 2003.
The applicant was informed by a letter from the Department dated
7 August 2003 that her application for spousal visas would be subject to regulation 820.211(2)(d) of the Migration Regulations 1994 (Cth) (“the Regulations”) which require a visa applicant to satisfy certain Schedule 3 criteria “unless the minister is satisfied that there are compelling reasons for not applying those criteria.” The applicant’s request that Schedule 3 criteria be waived was declined by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs, concluding that there were no compelling or compassionate reasons for waiver of Schedule 3.
On 1 September 2003, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant the Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa. The delegate noted that the applicant departed for New Zealand on
3 May 2003 and returned on 4 May 2003 without a valid ETA, and was counselled at the airport to lodge a spousal visa application.
The applicant applied for review of that decision by the Migration Review Tribunal (“the Tribunal”/“MRT”) on 15 September 2003. At the Tribunal hearing on 1 November 2004, the Tribunal informed the applicant that the ETA visa granted on 10 January 2003 was not valid because the applicant had been in Australia on the date the visa was issued. The applicant “expressed surprise” and explained there had been some confusion or misunderstanding on her behalf [CB 176]. She told the Tribunal that a close friend had suffered a heart attack in January 2003 and that for most of the following year she was concerned with caring for him in Australia and did not pay much attention to her own visa situation.
In the decision made by the Tribunal on 25 November 2004, the Tribunal affirmed the decision of the delegate not to grant the visas sought. The Tribunal found that the applicant did not satisfy the essential criteria for the grant of a Class UK visa (subclass 820), and consequently did not meet the criteria for a Class BS visa. Specifically, the Tribunal made the following findings:
a)the applicant lodged her application for a spousal visa outside the 28 day period prescribed by criterion 3001, as her last substantive visa, a visitor visa, expired on 23 December 2002 (the relevant day) and her application for a spousal visa was not lodged until 31 July 2003 – criterion 3001 of Schedule 3 of the Migration Regulations was therefore not satisfied;
b)there was no evidence that the applicant ceased to hold a substantive visa due to factors beyond her control, and therefore the applicant did not satisfy criterion 3004;
c)the Tribunal noted that “…once the review applicant was alerted at Melbourne Airport to the fact that she did not hold a valid ETA [that is, on 4 May 2003], it took her over two months to approach the Department in order to clarify her status”;
d)the Tribunal was not satisfied that the applicant and the nominator were in a long-standing spousal relationship (of at least two years duration) at the date of visa application on 31 July 2003;
e)there were no “compelling reasons” for not applying the Schedule 3 criteria;
f)although the Tribunal accepted that the applicant and the nominator would “suffer a degree of hardship if separated”, it did not consider that level of hardship to be sufficiently compelling to justify not applying the Schedule 3 criteria; and
g)the applicant would not face any particular difficulties in relocating to the United States, and the Tribunal noted that the nominator had expressed willingness to leave Australia for the United States if the applicant was unsuccessful in obtaining a visa.
On 20 December 2004, the applicant lodged an application and affidavit in this Court, being MLG 1654 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal’s decision was affected by jurisdictional error. On 25 January 2005, Registrar Mussett made directions setting the matter down for hearing. On 11 April 2005, 6 May 2005 and 17 August 2005, I made orders relating to the filing of documents.
The applicant filed an amended application on 8 June 2005, and contentions of fact and law on 16 June 2005. Summarily, the applicant submitted that:
a)the Tribunal misconstrued or misapplied criterion 3001 in respect to its interpretation of “relevant day” – it should have found that the “relevant day” was the day when the applicant last entered Australia unlawfully which was 4 May 2003;
b)the Tribunal erred by calculating the “relevant day” for the application of criterion 3001 to be 23 December 2002;
c)the Tribunal failed to take into account relevant considerations in relation to whether there were “compelling reasons” under clause 820.211 of the Migration Regulations; and
d)the Tribunal misinterpreted or misapplied criterion 3004 in respect to assessing whether there were factors beyond the applicant’s control.
The respondent’s contentions of fact and law, which were filed on
18 August 2005, sought that the application be dismissed with costs. The respondent submitted the following grounds for such a dismissal, summarily:
a)there was no clear evidence before the Tribunal that the applicant unlawfully entered Australia on 4 May 2003, and therefore “was entitled to assume that the applicant had not unlawfully entered Australia on 4 May 2003 or at any other time since she last held a substantive visa on 23 December 2002”;
b)the Tribunal’s finding that the relevant day was 23 December 2002, rather than 4 May 2003, had “absolutely no material impact on the applicant’s ability to satisfy criterion 3001” – the application lodged on 31 July 2003 was more than 28 days later than 4 May 2003 as well;
c)the Regulations required the applicant to satisfy all of criteria 3001, 3003 and 3004, in the absence of compelling reasons otherwise, so even if the Tribunal erred in respect to criterion 3001, the applicant still had to satisfy criterion 3004;
d)the applicant is seeking merits review in relation to the Tribunal’s finding of fact that the applicant did not cease to hold a substantive visa due to factors beyond her control with respect to criterion 3004, and the role of the Court to review such a finding is limited; and
e)if the Tribunal had committed an error, which is not conceded by the respondent, then such an error would not have materially affected the Tribunal’s ultimate decision.
The law
Criterion 3001 of Schedule 3 which is entitled ‘Additional criteria applicable to unlawful non-citizens and certain bridging visa holders’, of the Migration Regulations provides that:
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)entered Australia unlawfully on or after
1 September 1994;whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
(iv)the day when the applicant last entered Australia unlawfully.
Criterion 3004 provides that:
If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i)the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii)the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i)in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act 1958 (Cth) does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 (“Yusef”).
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Conclusions and findings
The Applicant contends that the Tribunal misconstrued or misapplied criterion 3001 on the grounds that:
a)It found the “relevant day” was the last day when the Applicant held a substantive visa when it should have found
b)That the “relevant day” was the day when the Applicant last entered Australia lawfully.
The Respondent submits and I accept that the Tribunal must apply the applicable legislation to the facts as found by it. In this case there was no clear evidence before the Tribunal that the Applicant unlawfully entered Australia on 4 August 2003. Nor was there any reasonable basis for inferring that the Applicant unlawfully entered Australia on that date. The Applicant was not detained upon her return to Australia on 4 May 2003. This evidence which was before the Tribunal supports an inference that the applicant lawfully entered Australia on this date. However it does not necessarily follow that if she lawfully entered Australia on that date, she must have held a substantive visa at the time. I accept the Respondent’s contention that it was open to the Tribunal to find on the evidence before it that the Applicant departed and re-entered using a bridging visa.
In those circumstances it was open to the Tribunal to find that the Applicant had not unlawfully entered Australia on 4 May 2003 or at any other time since she last held a substantive visa on 23 December 2002. Accordingly it was in my view open to the Tribunal to construe the “relevant day” by reference to the last day when the applicant held a substantive visa that is 23 December 2002.
In any event I am satisfied that the Tribunal’s finding with respect to
23 December 2002 as the relevant date instead of 4 May 2003 had no affect on the Applicant’s ability to satisfy criterion 3001. The date of lodgement of the visa application on 31 July 2003 is not in dispute and is more than 28 days later than 4 May 2003. In the circumstances any error in the Tribunal’s assessment of the “relevant day” in criterion 3001 could not have affected the Tribunal’s exercise of power and in my view does not constitute a jurisdictional error.
The Applicant further argued that if the Tribunal made an error in assessing what the relevant day was this would go to the issue of the compelling reasons because this would be a lesser non-compliance in terms of the 28 day time limit. However there is nothing in the Tribunal’s reasons which actively says the length of delay from
23 December was a factor which would mean that there were no compelling reasons for applying the schedule 3 criteria. What the Tribunal did take into account was the two month delay from the later date when it was said (Court book (‘CB’) 179 at [43] ):
“While the Tribunal is satisfied that the parties thought that the ETA issued on 10 January 2003 was valid, they have provided no reasonable explanation as to why they did not then approach the Department to make a further application for a spouse visa. The Tribunal can only assume, although it is not certain, that the parties were waiting until after their marriage in February in 2003. However, even if this were the case, the Tribunal notes that once the review applicant was alerted at Melbourne Airport to the fact that she did not hold a valid ETA, it took her over two months to approach the Department in order to clarify her status. The Tribunal accepts that the parties were occupied in looking after their sick friend, but does not consider that this is a sufficient explanation for their failure to act on advice from the Department”.
Furthermore I accept the submission of the Respondent that sub-paragraph 820.211(2)(d)(11) of Schedule 2 of the Regulations that in the absence of compelling reasons otherwise, the Applicant satisfy all of criteria 3001, 3003 and 3004.
The Tribunal concluded that the Applicant did not meet the requirements of criterion 3004 (CB 178 at [34]).
Criterion 3004 requires, in part, that in the case of a person who doe not hold a substantive visa that person ceased to hold a visa because of factors beyond his/her control. In this case, there is no evidence that the review applicant ceased to hold a substantive visa due factors beyond her control. The evidence indicates (and this is discussed further below), that on 17 December 2002 the Department alerted the review applicant to the impending expiry of her visitor visa. The review applicant and the sponsor undertook to lodge a further application by “Christmas Eve morning” but did not do so. Instead, on 10 January 2003 the review applicant applied for an ETA visa via a travel agent. The Tribunal notes that an applicant must be outside Australia when an ETA application is made, and in these circumstances it is not clear how the review applicant obtained “approval” for her ETA. However, the Tribunal is satisfied that the review applicant made a conscious decision to approach a travel agent in preference to seeking further information and advice from the Department, and for these reasons does not consider that she became unlawful due to circumstances beyond her control. In these circumstances the Tribunal finds that the review applicant does not satisfy criterion 3004”.
I accept the Respondent’s submission that the Tribunal did so because it found as a matter of fact, that the Applicant did not cease to hold a substantive visa due to factors beyond his control.
The Applicant argues that the Tribunal should not have made this finding of fact. However such an argument is based on a merits review and that is not permissible in this court. The Court cannot set aside a factual finding simply because it thinks that the probabilities of the case are against or even strongly against the finding. The Tribunal does not commit an error of law merely because it finds facts wrongly or because it adopts unsound or questionable reasoning (Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [146]).
The Applicants other main argument for setting aside the decision of the Tribunal is that the Tribunal erred in its assessment of the existence of compelling reasons for not applying criteria 3001, 3003 and 3004. The Applicant argues that the Tribunal erred in that it confined itself to circumstances existing at the time of the spouse visa application on
31 July 2003. I accept the argument of the Respondent that to the extent that it did so it did not commit any error. In the Federal Court decision of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 Wilcox J stated [at 37] (“Boakye-Danquah”):
“I agree with Mr Kennett that, in considering whether there were “compelling reasons” at a relevant date, there was no reason for the Tribunal to decline to apply the decision of Branson J in Dunne, but that it applied the requirement of compelling reasons to the circumstances extant at the time of decision, rather than to those prevailing at the time of application.”
And at [39(a)]:
“the Tribunal asked itself the wrong question in relation to the issue whether there were compelling reasons for not applying the Sch 3 criteria 3001, 3003 and 3004. The Tribunal asked itself whether there were such reasons arising out of the circumstances existing at the time of decision. It should have asked whether there were such reasons arising out of the circumstances at the time of application.”
In my view it is clear that the Tribunal was obliged to consider whether there existed compelling reasons arising out of circumstances at the time of the Applicant’s spouse application on 31 July 2003. The Tribunal was clearly mindful of this requirement (CB 179 at [39]).
The Tribunal stated (CB 179 at [40]-[41]):
“In regard to whether there are compelling reasons for not applying the Schedule 3 criteria the Tribunal has considered, firstly, the Minister’s guidelines set out in PAM3. The guidelines state that the existence of a long-standing spouse relationship (that is, a relationship of at least 2 years duration at the date of application) is a sufficiently compelling reason to justify not applying the Schedule 3 criteria. In this case the Tribunal is not satisfied that the parties were in a long-standing spouse relationship at the date of visa application on 31 July 2003. According to their evidence, they commenced living together on 25 December 2001 and subsequently married in February 2003. While the Tribunal has no reason to doubt that the parties were, at the time of application, in a genuine spousal relationship and that their relationship is ongoing, this is not of itself sufficient to warrant the waiver (or non-application) of Schedule 3 criteria.
[At 41] As noted above, however, the Tribunal is required to have regard to all the circumstances of the case in determining whether compelling reasons exist for not applying the criteria. In this case, the Tribunal is not satisfied that such reasons exist”.
The Applicant argued that the Tribunal failed to take into account without relevant considerations in deciding whether there were compelling reasons. Contrary to the Applicant’s arguments, it is clear that the Tribunal did consider the Applicant’s relationship with the sponsor at the time of the visa Application and accepted that it was “genuine” and “ongoing” but was not of itself sufficient to constitute compelling reasons (see Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204 at [28], [30] and [32]).
Finally the Tribunal also considered the potential hardship if the Applicant was not granted a spouse visa and had to return to the United States:
The Tribunal has considered the impact on the parties, were the review applicant required to return to the United States in order to apply for a spouse visa. The Tribunal accepts that both parties would suffer a degree of hardship if separated, but does not consider that the level of hardship which would result to either the review applicant or the sponsor is sufficiently compelling to justify not applying the prescribed criteria. There is no evidence before the Tribunal that the review applicant would face any particular difficulties in relocating to the United States and notes that she has two adult children living there. While it may be more difficult for the sponsor to accompany her, given his employment ties, the Tribunal has had regard to his statement at interview that he would be prepared to leave Australia in the event that the review application were unsuccessful (CB 180 at [44]).
Furthermore its consideration of such potential hardship was a circumstance in existence at the time of the spouse visa application (see Wilcox J in Boakye-Danquah at [34]-[35]).
For these reasons I am satisfied that the Tribunal’s assessment of compelling reasons as in existence at the time of the Applicant’s visa application on 31 July 2003 was free of any error. I am further satisfied that the Tribunal’s decision is not affected by jurisdictional error and even if it were in my view it would be futile to remit the matter to the Tribunal for further consideration for the reasons I have already outlined. Accordingly the Application should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Nadia Morales
Date: 19 January 2006
0