GAUCHAN v Minister for Home Affairs

[2018] FCCA 1433

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAUCHAN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1433

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to consider the applicant’s claims cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 368, 476

Migration Regulations 1994, cl.820.211, 820.221 of Sch.2

Cases cited:

Minister of Immigration and Citizenship v Li [2013] HCA 18

Applicant: NITTAN GAUCHAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 49 of 2018

Judgment of: Judge Street

Hearing date: 30 May 2018

Date of Last Submission: 30 May 2018

Delivered at: Sydney

Delivered on: 30 May 2018

REPRESENTATION

Counsel for the Applicant: Mr JR Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 49 of 2018

NITTAN GAUCHAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 12 December 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 Nepal and first arrived in Australia on 5 July 2007 on a Student visa (subclass 572).  The applicant obtained a number of Student visa extensions and on 26 February 2014, the applicant’s student visa was cancelled. That was the date of the applicant’s last substantive visa.  That decision was the subject of challenge before a differently constituted Tribunal and the decision of the delegate was affirmed on 5 September 2014.  The associated Bridging E visa (subclass 050) ceased on 14 October 2014.  The applicant was then unlawfully in Australia when he lodged the application for a Partner visa on 17 October 2014. 

3. On 14 October 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate considered the requirements of subclause 820.221 (2) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), and that the applicant needed to satisfy the criteria in Schedule 3, and as the applicant’s last substantive visa expired in February of 2014, the delegate had to consider whether there were compelling reasons not to apply the schedule 3 criteria and the delegate found there were not. 

4. The applicant applied for review of the delegate’s decision to the Tribunal. The applicant was invited by letter dated 21 September 2017 to attend a hearing on 5 December 2017. The applicant appeared on that date to give evidence and present arguments, and evidence was also given by his sponsor on that date. On 12 December 2017, the Tribunal delivered reasons affirming the decision of the delegate. The Tribunal found that the last substantive visa ceased on 26 February 2014 and that accordingly, the Tribunal had to consider whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found there were not compelling reasons to cause the Tribunal not to apply the Schedule 3 criteria in the applicant’s case and found the applicant did not meet cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision under review. 

Before this Court

1. The two grounds in the application of alleged jurisdictional error pressed by Mr Young of counsel are as follows:

   2. The Second Respondent made jurisdictional error by making a decision which was unreasonable.

   4. The Second Respondent made jurisdictional error by failing to consider the claims of the applicant on a cumulative or combined basis.

   Mr Young of counsel confirmed that grounds 1 and 3 were no longer pressed. 

Ground 2

1. In relation to ground 2, Mr Young of counsel referred to the principles identified in the Minister of Immigration and Citizenship v Li [2013] HCA 18. The starting point for Mr Young’s argument was by reference to what was accepted by the Tribunal in paragraph 17 of the Tribunal’s reasons. In that regard, the Tribunal expressly referred to having considered the evidence relating to the Schedule 3 waiver and the long-term nature of the relationship. In the context of having identified that consideration, the Tribunal accepted that the applicant and the sponsor had been in a genuine relationship for over three years. The Tribunal correctly noted that a genuine spousal relationship is a basic requirement for a Partner visa application. The Tribunal found the parties had failed to further satisfy the Tribunal in this case that the longevity of the relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.

2. Mr Young of counsel submitted that there is no underlying reasoning in support of the adverse finding by the Tribunal and that the adverse finding by the Tribunal in that regard does not reflect an active intellectual engagement with the issue of the longevity of the relationship.  The Tribunal’s reasons in paragraph 17 and the finding that the longevity in this case was not a compelling reason was a finding that was open to the Tribunal and cannot be said to lack an evident and intelligible justification.

3. The Tribunal had identified the background to the evidence, the background to the application and was accepting in favour of the applicant a necessary and essential requirement for success in relation to the Partner visa application. That did not give rise to circumstances in which the Tribunal was bound as a matter of reasonableness to hold that the three year relationship, albeit genuine, amounted to compelling reasons in the circumstances of the case. Nor are the Tribunal’s reasons inadequate in relation to that adverse finding. 

4. The next focus in ground 2 advanced by Mr Young, was the reasoning in relation to the Tribunal’s consideration of the impact of separation and hardship that can be considered a compelling factor in relation to Schedule 3 criteria. The Tribunal found, notwithstanding that observation, that the parties have not satisfied the Tribunal that their separation constitutes compelling reasons for not applying the Schedule 3 criteria. Mr Young submitted that there was no intellectual engagement with the hardship that separation would present to the parties and that the finding by the Tribunal in that regard was illogical and unreasonable. The Tribunal expressly referred to understanding that the parties’ separation may present a level of hardship and challenges if they are separated from one another for an extended period. That reasoning of the Tribunal is consistent with the Tribunal having an active intellectual engagement with the claim advanced by the applicant in relation to the impact of separation. The adverse finding by the Tribunal that the hardship was not a compelling factor cannot be said to lack an evident and intelligible justification. There is no illogicality or unreasonableness in the adverse finding by the Tribunal in relation to the consideration of hardship.

5. The next focus by Mr Young in relation to ground 2 was upon the financial hardship reasoning of the Tribunal in paragraph 20.  Particular focus was made upon the observation by the Tribunal that the Tribunal considered it is not unreasonable to think that the applicant may be employed while offshore and would be able to assist the sponsor. Mr Young submitted that there was no identification of the employment opportunities in Nepal and that there was no analysis of the level of income that would be able to be derived. These are all matters which was open to the applicant to advance and that the applicant did not advance. There was no claim by the applicant that he could not obtain employment in Nepal. The adverse finding by the Tribunal in the circumstances of the present case was open to the Tribunal and cannot be said to be unreasonable or illogical. 

6. The next focus by Mr Young in relation to his submissions in respect of paragraph 20 was on the Tribunal’s reasoning on the subject of it being not unreasonable to think that the sponsor’s family would assist the sponsor. Whilst Mr Young’s submissions advanced a proposition in paragraph 14 that there is no evidence to support such a finding, Mr Young’s oral submissions properly drew the Court’s attention to the express reference by the applicant in paragraph 18 to the fact that the applicant had stated that prior to the parties’ marriage, the sponsor was supported financially by her family. No transcript has been tendered in the present case. The no-evidence ground could not be made out and the no-evidence submission that was put in the written submissions has no substance. There was clearly evidence from which it was open to the Tribunal to infer that as the sponsor’s family had assisted her before marriage, the sponsor’s family may assist her in the absence of the applicant. That was a logical and rational observation for the Tribunal to make and to take into account in determining whether there were compelling circumstances for not applying the Schedule 3 criteria. 

7. Mr Young focused upon the obligation under s 368 of the Act requiring the Tribunal to set out the evidence upon which the findings of fact are based. Mr Young submitted that it should be inferred that there was no evidence to support the second-last sentence of paragraph 20 of the Tribunal’s reasons and that it was nothing more than speculation. The written submissions on behalf of the first respondent identified there was evidence in relation to the sponsor’s family having assisted the sponsor prior to marriage and there was no evidence adduced by the applicant that he would have difficulty obtaining employment or remuneration to assist the sponsor from overseas or that he would not assist the sponsor from overseas. The adverse finding by the Tribunal was not speculation. It was a finding that was open, rational and logical. No jurisdictional error as alleged in ground 2 is made out. 

Ground 4

1. In relation to ground 4, Mr Young submitted that the Tribunal had in paragraphs 23 and 24 engaged in a “tick-a-box” exercise and that the Tribunal’s reasons did not reflect an active and intellectual engagement with the overall circumstances in combination, taking into account the Tribunal’s reference to there being a genuine relationship and the reference to there being a level of hardship and also the financial impact from separation. 

2. The Tribunal’s reasons are to be read as a whole without a keen eye for error. It is patent in the circumstances of the present case that the Tribunal expressly referred to having considered the circumstances individually and as a whole and having done so, the Tribunal was not being satisfied that the circumstances constitute compelling reasons for not applying the Schedule 3 criteria. That was a correct application of the relevant test by the Tribunal. It was open to the Tribunal and does not reflect any error as alleged in ground 4.

3. Further, in paragraph 24 of the Tribunal’s reasons, the Tribunal made express further reference to having considered the parties’ circumstances individually and as a whole and found ultimately that the applicant was unable to satisfy the Tribunal that the reasons provided, taken either individually or together, amounted to compelling reasons to cause the Tribunal to not apply the Schedule 3 criteria in the applicant’s case. The Tribunal’s reasons reflected a consideration of the applicant’s claims and there is no basis in the circumstances of the present case to infer that the Tribunal did not engage in the cumulative consideration that the Tribunal expressly referred to. 

4. It is for the applicant to advance whatever evidence or argument he wished and for the Tribunal to decide whether the claim has been made out. The Tribunal’s reasons made plain that the Tribunal considered the applicant’s circumstances and whether they showed compelling reasons both individually and cumulatively. The “tick-a-box” proposition has no proper basis and there is nothing on the face of the Tribunal’s reasons to suggest the Tribunal did other than approach the review in accordance with the statutory requirements giving genuine and real consideration to the claims advanced. No case of bad faith has been advanced. The proposition that there was a box-ticking exercise is entirely inconsistent with the reasons of the Tribunal. No jurisdictional error as alleged in ground 4 is made out. 

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 July 2018