Gabba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] FedCFamC2G 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gabba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 368

File number(s):	MLG 790 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	11 April 2023
Catchwords:	MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	24
Date of last submission/s:	11 April 2023
Date of hearing:	11 April 2023
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf
Counsel for the First Respondent:	Ms Moxey, Solicitor
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

MLG 790 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ROHIT GABBA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	11 APRIL 2023

THE COURT ORDERS THAT:

1.The application filed on 27 March 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. This matter has had a convoluted history.  The application for a partner visa was lodged on 23 April 2014.  The application was refused by the delegate on 5 August 2015.  The applicant applied to the Administrative Appeals Tribunal (“AAT”) to review the delegate’s decision and the AAT affirmed the decision of the delegate, on 14 December 2016.

2. The applicant asked this Court to review that decision of the Tribunal, on 12 January 2017.  On 8 August 2017, this Court made orders by consent remitting the matter to the Tribunal.  The reason for that was that there was, in existence, a certificate, pursuant to section 375A which was not disclosed to the applicant and some of the documents the subject of the certificate were relevant. 

3. This was a breach of procedural fairness and, therefore, infected the Tribunal’s decision with jurisdictional error.  The matter then went back to the Tribunal.  On 14 August 2017, the Tribunal emailed the applicant and told him that his case would be reconsidered. 

4. On 11 December 2017, the Tribunal emailed the applicant and attached a copy of the section 375A certificate and invited him to comment on the validity.  He did not respond to that invitation.  On 12 December 2017, the Tribunal emailed the applicant and invited him to attend a hearing on 19 February 2018. 

5. On 29 January 2018, just before the Tribunal hearing, the Tribunal sent the applicant a letter saying that the 375A certificate was valid and that the documents in it should not be disclosed. It told the applicant what the general gist of the information was and invited him to comment on the information. On 12 February, the applicant provided a written response to that, and on 19 February, the applicant appeared before the Tribunal to give evidence and to present arguments.  Three days later, on 22 February 2018, the Tribunal affirmed the decision not to grant the visa. 

6. On 27 March 2018, the applicant asked this Court to review that decision of the Tribunal.  As can be seen from those dates, this means that the applicant has been waiting for over five years for this Court to determine his application.  It seems that the matter had been assigned to a Judge in Melbourne, but the matter was never heard, and it then became part of the National Migration docket, where it was eventually assigned to be heard by me today, 11 April 2023. 

7. On behalf of the Court, I apologise to Mr Gabba for the inordinate delay in the Court being able to finalise this matter.  This is part of the reason why, as I will explain later, I will not be adjourning the matter and it is also part of the reason why I am giving this decision ex tempore.  As I have already noted, the application was one for a partner visa that was submitted on 23 April 2014. 

8. At the time of the submission of the application, the applicant was married to the sponsor.  The sponsor was quite happy to sponsor the application.  Now, whilst it is that the main prerequisite for a partner visa is that, at the time of application, there is a sponsor and the applicant and the sponsor are married, that prerequisite is also required at time of decision. 

9. What is clear, on the evidence, is that the sponsor withdrew her sponsorship on 9 June 2015.  On 9 July, which was one month later, the applicant quite properly told the Department that the relationship had ended but that he was trying to reconcile with the sponsor. 

10. The Tribunal was satisfied that the applicant attempted to reconcile with the sponsor until September 2015.  The Tribunal accepted the evidence of the applicant that he had telephone contact with the sponsor between 9 June 2015 and September 2015, and he actually saw her on one occasion, in August 2015, when the sponsor visited him.  The Tribunal accepted the evidence of the applicant that, in September 2015, the sponsor told the applicant that she was not coming back, and that the relationship would never resume. 

11. The Tribunal accepted that the applicant was devastated by such a statement.  The Tribunal accepted that this caused the applicant to seek psychological assistance.  The Tribunal accepted that the applicant does not know where the sponsor is and has not heard from her.  The Tribunal noted that the applicant accepted that the relationship was over, and that he would never be able to be reconciled with the sponsor. 

12. The Tribunal said that the applicant had told the Tribunal he sought a review because it was unfair that the sponsor had ended the marriage in the way that she did, and that he wanted to know why she ended the relationship.  The Tribunal said to the applicant it was unable to answer that question and the only thing that the Tribunal could do was to consider whether he met the requirements for the visa. 

13. As it was, the Tribunal was satisfied, because it was the only evidence before it, that the applicant was not sponsored by the sponsor anymore and that the applicant is no longer the spouse of the sponsor.  Because of this, the applicant could not meet the criteria of the clause 820.211. 

14. There were no other exceptions that could be considered (such as the two of them having a child together, the sponsor inflicting family violence upon the applicant, or the sponsor dying).  The applicant has been upfront and honest that none of those exceptions apply.  Having regard to all of that, the Tribunal came to the only decision that it could and that was that the decision, not to grant the applicant a spousal visa, had to be affirmed. 

15. The grounds of this application are as follows: 

    The error was that I was denied procedural fairness because I was not given a proper opportunity to present my case at AAT hearing.  First, they cancelled my hearing without letting me know and they provide me a hearing offices, after an hours’ waiting time, and the hearing was over in less than 30 minutes.  I was given an oral decision on the day, and I feel I should have been given more opportunity to present my case. 

16. It may very well be that the applicant has confused what happened at this Tribunal hearing with what happened at the previous Tribunal hearing.  What is clear, though, from the material in the court book, is that the applicant was invited to attend a hearing scheduled for 19 February 2018.  It would seem that the applicant did attend at the proper time, because the hearing was scheduled to start at 1.30 pm.  The hearing record shows that it started at 2.10 pm.  So it would seem that the applicant was waiting for some time. 

17. The hearing did only take a short time but that is understandable as the question was, in crude terms, a very black and white one; either the applicant was sponsored by the sponsor and was the spouse of the sponsor, or he was not.  The factual scenario was that he was not.  This simply meant that he could not satisfy the criteria.  That is why the hearing took such a short time.  None of those things indicate that there was any jurisdictional error. 

18. The applicant was not given an oral decision on the day.  He had been given an oral decision in the previous Tribunal hearing but in this Tribunal hearing, the decision was made three days afterwards.  So none of the matters that were raised in the application give rise to a jurisdictional error. 

19. The applicant appeared before me today, unrepresented.  It is difficult not to have a degree of sympathy for him because, in many ways, it is not so much the loss of a visa that is concerning him, it is the loss of a marriage. 

20. He still believes that he has been dealt with unfairly - not so much by the Immigration Department and any Tribunals or Courts, but by the sponsor herself.  He said to me, quite emotionally, that it is not his fault that his feelings have been played with; it is not his fault that he is no longer married; it is not his fault that the sponsor left him; it is not his fault that he has no idea why this has happened and what has caused it.  These are matters that can truly trouble a person but, unfortunately, they do not amount to any jurisdictional error made by the Tribunal. 

21. These realities were explained to the applicant.  He then asked if he could have more time.  He said that he would hire a lawyer and ask the lawyer to go through all of these things so that he could assure himself that he had left no stone unturned and that there was really nothing that could be done. 

22. I explained to the applicant that he had five years in which to do this.  He acknowledged this but said that, in effect, life got in the way of all of these things, and he just had not ever gotten around to getting the lawyer but, if given an adjournment, he would definitely get the lawyer and that he would be quite happy if the lawyer told him that he had no other avenues. 

23. With all respect to the applicant, this is a very basic question.  Either the prerequisites are able to be established or they are not.  There is nothing that can be done to put any doubt on the fact that, on 22 February 2018, when the Tribunal made its decision, the applicant was not sponsored by the sponsor and the applicant was not the spouse of the sponsor. 

24. There is nothing that could change that and no amount of time and no amount of lawyers looking at the matter can actually change that factual circumstance.  This is a matter that has been waiting for five years to be finalised in this Court.  It does no one any good, especially not the cause of justice, for this matter to be delayed any further. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       11 April 2023