Digra v Minister for Immigration

[2018] FCCA 386

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIGRA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 386

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider whether there were compelling reasons for not applying the schedule 3 criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 37, 476

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

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12

Applicant: MALKIT DIGRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 919 of 2016

Judgment of: Judge Nicholls

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

Applicant: The applicant appeared by telephone.

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

ORDERS

1. The application made on 15 April 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 919 of 2016

MALKIT DIGRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15 April 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 March 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant Mr Digra a Partner (Temporary) (Class UK) visa.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

1. Mr Digra is a citizen of India (CB 2). He originally arrived in Australia in March 2007 and held student visas, the last of which was valid until August 2010 ([9] at CB 213 and see CB 174.5). After the expiry of his student visa, Mr Digra applied for a protection visa ([9] at CB 213). At this time, Mr Digra did not hold any substantive visa, and remained in Australia on various bridging visas associated with his protection visa application.

2. He applied for the partner visa on 22 April 2014 (CB 1 to CB 91). The sponsor for the partner visa was Mr Digra’s wife, Ms Digra (also known as Ms O’Reilly) (CB 5). He submitted further documentation to support his application to the delegate on 24 April 2014 (CB 96 to CB 99).

3. As noted above, Mr Digra had not held a substantive visa for a number of years prior to his partner visa application. He was therefore required to meet cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In order to meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, Mr Digra was required to satisfy criteria 3001, 3003 and 3004 of Schedule 3 to the Regulations, unless there were “compelling reasons for not applying those criteria”.

4. Mr Digra made his partner visa application more than 28 days after the last day he had held a substantive visa. It was therefore not in dispute that he could not meet item 3001 of Schedule 3 to the Regulations. The crucial issue before the delegate, and later the Tribunal, was whether there were compelling reasons for not applying those criteria (cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations).

5. The delegate sent a letter, by email, to Mr Digra on 2 September 2014, inviting him to provide information on the circumstances which led to him being without a substantive visa and any compelling reasons that may have applied to his case, together with any supporting documentation. He was also invited to provide further evidence of his relationship with Ms Digra (CB 100 to CB 105).

6. A migration agent provided submissions to the delegate on Mr Digra’s behalf [the submissions are undated but it appears from the delegate’s decision record that they were received by the delegate on 29 September 2014] (CB 106 to CB 114 and see CB 176.4). A psychological report in relation to Ms Digra, dated 24 September 2014, was also provided to the delegate (CB 115 to CB 120), along with a bundle of various supporting documents (CB 121 to CB 166).

7. The delegate refused the application for a partner visa on 9 December 2014 (CB 170 to CB 179). Mr Digra applied for review to the Tribunal on 17 December 2014 (CB 189 to CB 192).

8. By letter dated 15 December 2015 sent by email on the same date, the Tribunal invited Mr Digra to attend a hearing before it on 3 February 2016 (CB 195 to CB 198). This hearing was postponed at Mr Digra’s request and a new hearing date was set for 15 March 2016 (CB 199 to CB 202). Mr and Ms Digra attended the hearing on that day (CB 206 to CB 209).

9. The Tribunal affirmed the delegate’s decision on 21 March 2016 (CB 212 to CB 217). The Minister’s written submissions filed in these proceedings contain a fair summary of the Tribunal’s analysis and findings. For the purposes of this judgment I adopt the relevant paragraphs as follows ([7] – [19] of the Minister’s written submissions):

   “[7] The Tribunal set out the principles from leading authorities to determine whether ‘compelling reasons’ exist: [7]−[8]. The ‘compelling reasons’ advanced by the applicant were that his sponsor is dependent upon him for financial and emotional support.

   [8] The Tribunal accepted that the applicant and sponsor met in February 2013 and married in March 2014 and that they began living together when they married: [10]. Previously the sponsor and her 5 children, the youngest of whom was (at the time of the decision) 3 years old, lived with her mother. On the couple’s own evidence the children visit the applicant and sponsor ‘on and off’, regularly with no set pattern: [12].

   [9] The Tribunal accepted that it would not be practicable for the sponsor to return to India with the applicant while he waits for his visa to be processed and found that they would be likely to have to live apart for at least a year: [13].

   Financial circumstances

   [10] On the couple’s evidence the Tribunal found the sponsor does not work outside the home and had not done so for several years. After she married, Centrelink paid parenting payments and most of the family tax benefit to her mother, who is the principal carer for the children. The Tribunal found that the sponsor (but not her children) was now financially dependent upon the applicant but had the applicant returned to India and applied for the visa there, her financial circumstances would be the same as before they married: [14]−[17].

   [11] It found that the Commonwealth, not the applicant, met most of the costs of supporting the children and, if the applicant returned to India, the sponsor would return to live with her mother, as before, and Centrelink payments to her would increase while the applicant's visa application is processed. It found she could support herself with careful budgeting: [17]−[19].

   Emotional support

   [12] The Tribunal noted the applicant’s claim that his sponsor was emotionally dependent on him because of her mental health issues and that the sponsor had stated that she believed she had suffered untreated post−natal depression after the birth of her youngest child.

   [13] The Tribunal referred to a psychologist's report dated 24 September 2014, provided to the delegate. At [20] the Tribunal noted that the report did not include a diagnosis of a particular mental health condition or describe very serious symptoms, notwithstanding that it had stated the sponsor: ‘presents with some concentration and retention/memory problems which I believe are related to heightened anxiety and stress’.

   [14] The Tribunal found on the evidence that the sponsor did not suffer from any mental health condition and in any event, both the applicant and the sponsor told the Tribunal the sponsor was healthy at the date of the hearing: [21]−[22].

   [15] As to the sponsor’s 5 children, the Tribunal found that the applicant did not have a close relationship with them. Indeed, at the hearing the applicant was unable to correctly state all their names and ages and gave the incorrect gender for 2 of them: [23].

   Further matters

   [16] A further ‘compelling reason’ advanced by the applicant was that he had fears for his safety in India. However, at the hearing he told the Tribunal he would be happy to visit his family in India, were it not for his responsibilities to the sponsor. On this basis the Tribunal found that fear of safety in India was not a compelling reason: [23].

   [17] Finally, the applicant's agent contended that the Tribunal should take into account the Closure of a college in 2010, at which the applicant had been enrolled. The closure of the college was the basis for the refusal a further student visa to the applicant at that time. The Tribunal noted that even if the applicant had been granted a further student visa at the time, it would not have extended relevantly to the date of the partner visa application: [25].

   [18] In conclusion, the Tribunal accepted that while the applicant may have financially supported the sponsor at relevant times, it found that he did not support the children and the sponsor could have continued to rely on Commonwealth benefits, with careful budgeting, to support herself and her children during a future separation. Furthermore, although the applicant may have provided some emotional support to the sponsor, the Tribunal was not satisfied that she needed continuous care from him as claimed. She may miss him, but she does not have mental health issues his absence would exacerbate: [26].

   [19] It was not satisfied that there were compelling reason[s] not to apply the Schedule 3 criteria: [27].”

   [Footnote omitted.]

Before the Court

1. On 1 June 2016 various orders were made by consent, by a Registrar of the Court for the progress of the matter. These included giving Mr Digra the opportunity to file any amended application and any further evidence by way of affidavit. Mr Digra has not filed any further evidence, nor has he filed an amended application.

2. Mr Digra appeared before a Registrar of the Court via telephone at a mention on 27 October 2016 and various orders were again made on that date, including that the matter be set down for final hearing, and orders directing Mr Digra and the Minister to file written submissions. The Minister filed written submissions on 31 January 2018. Mr Digra did not file written submissions.

The Application to the Court

1. The application to the Court contains three grounds in the following terms:

   “1. The decision of Tribunal is affected by error of law.

   2. Decision seems unfair to Application.

   3. Decision effects the Applicant and his family.”

   [Errors in original.]

Consideration

1. At the final hearing, Mr Digra appeared before the Court by telephone at his own request.  The Minister was represented by a solicitor.

2. Mr Digra was given the opportunity to address each of the grounds of the application. His oral submissions are addressed below.

3. Ground one of the application asserts that the Tribunal’s decision is “affected by error of law”. No particulars are provided. Before the Court, Mr Digra explained that the assertion of legal error is that the Tribunal did not consider the situation of his wife (Ms Digra nee Ms O’Reilly).

4. It is important to note the following from the background as set out above. The visa for which Mr Digra had applied for was a partner visa. His migration history in Australia is that he arrived on a student visa in March 2007, and obtained subsequent student visas, the last one ceasing on 30 August 2010 (CB 174.5). While he visited India from 1 April 2010, he returned on 28 June 2010 (CB 12.5), and following the expiry of his last student visa, he was allowed to remain in Australia as the holder of various bridging visas issued in connection with his protection visa application. It is important to note that for current purposes, bridging visas are not substantive visas (see s.5(1) of the Act defining “bridging visa”, and “substantive visa” (see at (a)), and s.37 of the Act).

5. As Mr Digra had not held a substantive visa for some years before making the partner visa application, he was required to meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. As a result, he was required to meet criteria 3001, 3003 and 3004 of Schedule 3 to the Regulations, unless there were compelling reasons for not applying those criteria.

6. For current purposes, items 3001(1) and 3001(2)(c)(iii) of Schedule 3 to the Regulations requires that a visa application must be made within 28 days of the last day when the visa applicant held a substantive visa. In the circumstances, Mr Digra could not meet this requirement. The issue before the delegate and relevantly, the Tribunal, was whether there were compelling reasons for not applying that criterion.

7. It is in the context of the consideration of whether there were compelling reasons for not applying the schedule 3 criteria, that the matter of Ms Digra’s circumstances arises. Before the Tribunal, Mr Digra had advanced as one compelling reason, that if he were to be required to leave Australia for the purposes of applying for a partner visa offshore, then this would have a significant impact on his wife and her five children from a previous marriage.

8. Mr Digra’s complaint fails at the factual level on any plain reading of the Tribunal’s decision record. In the circumstances, it is clear that the allegation that the Tribunal failed to consider Ms Digra’s circumstances is, with respect to Mr Digra, no more than a disagreement with the Tribunal’s conclusion that her circumstances were such that it could not be said it was a compelling reason for waiving the relevant requirements for the grant of the visa.

9. From [11] (at CB 214) to [23] (at CB 215) of its decision record, the Tribunal set out the evidence given by Mr and Ms Digra concerning Ms Digra’s circumstances and that of her five children. The Tribunal did consider Mr Digra’s evidence on this issue, and in particular, evidence of the relevant financial circumstances, the situation of Ms Digra’s children and the emotional support he provided to his wife. This included a reference to a psychologist report dated 24 September 2014 which Mr Digra had provided to the delegate (see [20] at CB 215).

10. The Tribunal’s reasoning in respect of each factor (above at [23]) reveals that it engaged with each of the claims, and evidence in support of those claims, as put by Mr Digra. The Tribunal made various findings which were reasonably open to it to make on what was before it, and were logically probative of the material before it.

11. The Tribunal accepted that Ms Digra and her five children had lived with her mother ([11] at CB 214). It also accepted that Mr and Ms Digra married in March 2014 and subsequently began living together ([10] at CB 214). On the evidence given by Mr and Ms Digra to the Tribunal, the children remained with Ms Digra’s mother and would visit Mr and Ms Digra “on and off”, but there was “no regular pattern of care” ([12] at CB 214).

12. However, the Tribunal found that Ms Digra could not go to India with Mr Digra while he applied for a visa. It accepted that they would live apart “during a processing period of at least a year” ([13] at CB 214).

13. The Tribunal considered Mr Digra’s claims of Ms Digra and her children’s financial dependence on him, and importantly, the Tribunal considered their evidence concerning Centrelink payments paid to Ms Digra, and now to her mother, who was the principal carer of the children after Mr and Ms Digra’s marriage ([14] – [15] at CB 214).

14. However, the Tribunal relied on, and accepted, her evidence that she had “lived independently with the children when she relied on Centrelink payments to support herself and the children” ([18] at CB 214). The Tribunal found, on the evidence, that if Mr Digra were to return to India, Ms Digra could return to live with her mother “for some months” and “would not be homeless”. Further, and in any event, the Tribunal found that both Ms Digra and the children would receive financial benefits by way of increase welfare payments if Mr Digra were to return to India ([18] at CB 214 to [19] at CB 214 to CB 215).

15. The Tribunal also considered the matter of emotional support and Ms Digra’s emotional dependence on Mr Digra. As noted above, the Tribunal also considered a psychologist report that Mr Digra had provided to the delegate concerning Ms Digra. The Tribunal noted that the report “[did] not include a diagnosis of a particular mental health condition” nor did it describe “very serious symptoms” ([20] at CB 215). It was reasonably open to the Tribunal to find in the circumstances, having regard to the psychologist report, that Ms Digra did not suffer from any mental health condition. In any event, and notwithstanding the provision of the psychologist report, Mr Digra’s and Ms Digra’s evidence to the Tribunal was that she was “healthy at the date of hearing” ([22] at CB 215).

16. Before the Tribunal, Mr Digra also advanced as a further compelling reason as to why the requirements for the visa should be waived, that he had fears for his safety in India. However, the Tribunal had regard to his own evidence that he would be “happy” to visit his family in India, were it not for his responsibilities to his wife and her children. The Tribunal found that a fear for his safety in India was therefore not a compelling reason ([24] at CB 215). This also was reasonably open to the Tribunal on what was before it.

17. In submissions prepared by a migration agent on Mr Digra’s behalf, it was submitted that the closure of an educational institution in 2010 at which Mr Digra had been enrolled should be taken into account. The migration agent submitted that the closure of that institution was the basis of the refusal of a further student visa to Mr Digra at that time. Even if that were to be the case, the Tribunal found that even if Mr Digra had been granted a further student visa at that time, the length of the period of stay relevant to that visa would not have extended to the relevant date of the partner visa application ([25] at CB 215).

18. In all, the Tribunal found that while Mr Digra may have financially supported his wife at relevant times, he did not support the children, and Ms Digra and her children could continue to rely on Commonwealth benefits to support themselves during any future separation. Further, it accepted that Mr Digra may have provided some emotional support to his wife in the past, but was not satisfied that she needs continuous care from him as he had claimed ([26] at CB 215 to CB 216).

19. In the circumstances, Mr Digra’s claim that the Tribunal failed to consider the situation of his wife is not made out. No error is revealed by ground one.

20. Ground two asserts that the decision “seems unfair”. Before the Court, Mr Digra explained that his complaint here mirrored the complaint in relation to ground one (regarding his wife). He further asserted that the Tribunal had not provided any reasonable explanation as to why the situation of his wife was not a compelling reason, particularly in light of the psychologist report that had been provided.

21. As set out above at [23] – [29], the Tribunal did provide such an explanation, and made findings that were reasonably open to it to make on what was before it. These findings were probative of the evidence provided by Mr Digra himself.

22. As I sought to explain to Mr Digra, this Court cannot intervene to substitute its own findings of fact, and conclusions, for that of the Tribunal. No jurisdictional error is revealed simply because Mr Digra believes the Tribunal decision to be “unfair”, or is a decision that is adverse to him. In the circumstances, the Tribunal is not compelled to make a favourable decision, or even the “correct” decision. It is required to make a lawful decision. That is, a decision comprising of a conclusion arising from findings reasonably made, and logically probative, of the evidence before it. That is what the Tribunal has done in the current case.

1. Also in his oral submissions, Mr Digra stated that the Tribunal should have made some further inquiry into his, and Ms Digra’s, “statements” (it was not clear what “statements” Mr Digra was referring to, but see statements by Mr and Ms Digra at CB 61, CB 91, CB 142, CB 143 and CB 157). For example, Mr Digra said the Tribunal’s decision was “unfair” because there was nothing to show how his wife would be able to cope in his absence.

2. It is the case that there is no general duty on the Tribunal to make inquiries (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”), Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12). As the Minister submitted before the Court, it is for an applicant to make their claims and provide evidence such as to satisfy the Tribunal that the visa must be granted.

3. This is not a case where the Tribunal’s limited obligation to make inquiries arises, as that obligation is explained in SZIAI at [25]:

   “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…”

4. It is important to note that before the Tribunal Mr Digra was given a reasonable opportunity to provide his evidence and to set out his claims. Mr Digra applied for review to the Tribunal on 17 December 2014 (CB 189 to CB 192). The Tribunal acknowledged this application by letter dated 19 December 2014, sent to Mr Digra’s email address (CB 193 to CB 194). Importantly, the letter noted (CB 193):

   “If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”.

5. By letter dated 15 December 2015 (that is, nearly a year later) and sent to Mr Digra’s email address, Mr Digra was invited to attend a hearing before the Tribunal scheduled for 3 February 2016 (CB 195 to CB 198). The Tribunal’s letter put Mr Digra on notice that one of the issues that was to be considered at the hearing was whether there were any compelling reasons for not applying the relevant visa requirements (CB 197.3). Again, the letter reminded Mr Digra that if he had any additional relevant material he wanted to rely on at the hearing, he should provide it to the Tribunal no later than 27 January 2016 (CB 197.3).

6. As noted above, Mr Digra attended the hearing. He was accompanied by Ms Digra and a friend who attended as a witness (CB 206). On the evidence before the Court, the hearing was a meaningful opportunity for Mr Digra to make his arguments in relation to the relevant issue in the review (that is, whether there were compelling reasons for waiving the requirements in cl.820.211 of Schedule 2 to the Regulations). There is no indication of any “unfairness” on the part of the Tribunal. In all, ground two is not made out.

7. Ground three asserts that the decision “effects [affects] the applicant and his family”. There can be no dispute that that is the case. However, as the Minister correctly submitted before the Court, that of itself, does not reveal jurisdictional error in the Tribunal’s decision.

8. Before the Court, Mr Digra asked the Court to look at the Tribunal decision in light of the materials that were before it, and otherwise reproduced in the Court Book, to determine whether it revealed some legal error on the part of the Tribunal. I have considered all of the evidence before the Court and cannot see that the Tribunal’s decision is affected by any jurisdictional error.

Conclusion

1. The application does not reveal any legal error on the part of the Tribunal. The application should be dismissed. I will make the appropriate order.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  26 February 2018