Govender v Minister for Immigration

[2018] FCCA 2381

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOVENDER v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2381

Catchwords:
MIGRATION – Application for Partner (Permanent) (Subclass 801) visa – Applicant’s relationship with sponsoring partner ended – whether Administrative Appeals Tribunal afforded Applicant procedural fairness and natural justice – no jurisdictional error established. 

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 359A, 361, 366A, 476

Migration Regulations 1994 (Cth), cls.1.15A, 801.221

Applicant: WOOLAGANATHAN GOVENDER

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 564 of 2018

Judgment of: Judge Baird

Hearing date: 2 August 2018

Date of Last Submission: 2 August 2018

Delivered at: Sydney

Delivered on: 2 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms K Evans, Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000, to be paid by way of instalments: 

   (a) the first instalment being due on 3 September 2018 in the sum of $2,000; and

   (b) thereafter, three further instalments, each in the sum of $1,000, each payable 28 days thereafter (being 1 October 2018, 29 October 2018 and 26 November 2018 respectively); or

   by such other instalments and time periods as the parties may agree in writing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 564 of 2018

WOOLAGANATHAN GOVENDER

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

EX TEMPORE REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. Mr Govender applied for a Partner (Residence) (Class BS) (Subclass 801) Visa on the basis of his marriage to an Australian citizen.  Although at the time of his application on 11 October 2013 Mr Govender was in a married relationship, by the time of the interview about the grant of the Visa, and subsequent decision before a Delegate of the Minister of Immigration and Border Protection (now Minister for Home Affairs, the First Respondent) in January 2017, he was no longer in such a relationship, as he candidly wrote to the Department of Immigration and Border Protection on 19 July 2016 and 31 August 2016.  So also, at the time of the hearing before the Administrative Appeals Tribunal, he was not in a continuing relationship, as he candidly disclosed to the Tribunal.

2. Because the primary criteria for the class of Visa that Mr Govender seeks is that he is the spouse of his sponsor, and according to the definition of “spouse” in s.5F(2) of the Act, is in a continuing relationship with his sponsor, he does not meet the primary criteria for the Visa.

3. The application before me is an application pursuant to s.476 of the Migration Act 1958 (Cth), in which Mr Govender seeks judicial review of a decision of the Tribunal dated 14 February 2018, affirming the decision of the Delegate dated 20 January 2017. That decision was to refuse to grant Mr Govender the Visa.

Background

1. Mr Govender was born in 1968, and is a citizen of South Africa.  In June 2013, he married an Australian citizen, Ms Pillay (his sponsoring partner), in Sydney.  As well as the civil ceremony in Sydney, Mr Govender and his wife celebrated a Hindu wedding in South Africa in August 2013.  On 11 October 2013, he lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa as well as the current Visa on the basis of his marriage.  His then wife also lodged a sponsorship in support of his application for the Visa.  In September 2013, Mr Govender joined his wife in Australia.  On 16 October 2013, Mr Govender was granted a Partner (Temporary) (subclass 820) visa.

2. On 4 July 2016, Ms Pillay advised the Department by email that there had been a breakdown in her marriage with Mr Govender.  On 19 July 2016 Mr Govender also wrote to the Department confirming that he and his wife had officially separated and that he was seeking alternative accommodation.  He subsequently found alternative accommodation.

3. On 20 July 2016 the Department by letter, invited Mr Govender to comment on the change in his relationship status.  The letter advised that the end of the spousal relationship upon which the Visa application was based is “likely to result in the refusal of [his] application.”  Mr Govender responded to the Department by letter dated 31 August 2016, again confirming that the couple had decided to separate in March 2016. Mr Govender outlined the circumstances that led to the relationship breakdown.  He also advised that he was currently employed and was self-sufficient, and requested the Department to “review [his] circumstances and grant [him] permanent residency”.

Relevant legislation

1. Pursuant to s.65(1) of the Act, the Minister is to refuse to grant an application for a visa if, among other things, the criteria prescribed for the visa by the Act or the Regulations have not been satisfied. At the time Mr Govender made his application for the Visa, the primary criteria for the grant of the class of Partner (Residence) Visa he sought was set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth), in cls.801.221 to 801.226. Relevantly, cl.801.221, in specifying the primary criteria, provides (emphasis in bold):

   801.221

   (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

   (2)     An applicant meets the requirements of this subclause if:

   (a) the applicant is the holder of a Subclass 820 visa; and

   (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

   (i) the sponsoring partner; or

   (ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

   (c) the applicant is the spouse or de facto partner of the sponsoring partner; and

   (d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

2. I note that these criteria are criteria to be satisfied at the time of the decision.  Thus, cl.801.221(2) requires that, at the time of the decision, be it the Delegate’s decision or subsequently the Tribunal’s decision, the applicant is the spouse or de facto partner of the sponsoring partner.  

3. Section 5F of the Act provides that a person is the “spouse” of another person if, under sub-s.5F(2), the 2 persons are in a “married relationship”. Under s.5F(2), persons are in a “married relationship” if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they live together or do not live separately and apart on a permanent basis.

4. In considering the matters set out in s.5F(2), the decision maker must have regard to all of the circumstances of the relationship. This includes the matters set out in reg.1.15A(3) of the Regulations, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

5. Subclause 801.221(5) and (6) prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsoring partner has ceased. These circumstances include: where the sponsoring partner has died (see sub-cl.801.221(5)(b)), where the applicant or dependent child is the victim of family violence committed by the sponsoring partner (see sub‑cl.801.221(6)(c)(ii)), or where the applicant and sponsoring partner share custody, access, maintenance obligations, or a residence or contact order made under the Family Law Act 1975 (Cth) (see cl.801.221(6)(c)(iii)). Mr Govender did not point to any such circumstances in the present case.

Delegate’s decision

1. As I have said, on 20 January 2017, the Delegate found that Mr Govender did not satisfy the requirements of cl.801.221(2) on the date that the decision was made, as Mr Govender was no longer in a spousal or de facto relationship with his sponsoring partner.

2. The Delegate considered whether Mr Govender met any of the exceptions in cl.801.221(3) to (6).  Since, at the time of the Delegate’s decision, he had not made any claims or provided any evidence regarding the death of his sponsoring partner, incidents of family violence or the existence of a child of the relationship, the Delegate was not satisfied that he met the requirements of the exceptions. The Delegate refused to grant Mr Govender the Visa.

3. I note that in the decision, the Delegate noted Mr Govender’s request to be considered for the grant of permanent residency on account of his employment and his assimilation to the Australian culture which he raised in his letter dated 31 August 2016.  However, the Delegate concluded that “there are no provisions within the Act or Regulations that allows for the grant of a subclass 801 visa on these grounds.”  Neither party before me today was able to identify any provisions that would permit granting the Visa on such grounds.

Proceedings before the Tribunal

1. On 30 November 2017 by letter, the Tribunal invited Mr Govender to comment on information that his relationship with Ms Pillay had ended. That letter noted that “if the Tribunal is not satisfied that you are the spouse or de facto partner of the sponsor, and if you do not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that you do not meet the requirements for the grant of the visa for which you have applied”. 

2. Mr Govender has been very candid with the Department, the Tribunal, and with this Court.  By email on 12 December 2017, he confirmed with the Tribunal that he had separated from his sponsoring partner.  He also noted the 3 exceptions under which the Visa can be granted and concluded that none of the exceptions applied to him.

3. His email was as follows, after the introduction:

   I would like to inform you that my partner and I were separated at the time when the application for a partner visa was lodged.  My partner had withdrawn her sponsorship by this time.  I have also read the three exceptions under which the visa can be granted and I have concluded that none of them apply to myself.  Thank you again.

4. I note that Mr Govender’s email suggests that he was referring to the time of the original application for partner visa but that is not, on the evidence before me, correct.  In Court this morning, Mr Govender has clarified that the reference in his email was not to the time of his original application for the Visa, but to the time of his application to the Tribunal.

5. On 14 February 2018, Mr Govender attended a hearing at the invitation of the Tribunal.  The Tribunal record in evidence indicates that the hearing took half an hour.  Mr Govender disputes that the hearing took so long but concedes that the Tribunal member asked him whether he was in a spousal relationship, what happened, asked him whether he was abused by his then partner and whether there were any children of the relationship.  Mr Govender conceded that it was fair to say that the Tribunal went through the criteria in the legislation which were attached to the Delegate’s decision, those criteria being the criteria set out in cl.801.221(1) to (6), and also the criteria of “spouse” in s.5F(2) of the Act.

6. Mr Govender provided a folder of documents to the Tribunal member and, from the bar table, said to me in Court today that the Tribunal member did not look at the evidence in the folder at the time of the hearing.  Mr Govender says that the Tribunal member took the folder with her, and said that she will take it into account in her decision. 

7. Mr Govender agrees that the documents at pages 120 to 129 of the court book in evidence are the documents in the folder that he presented to the Tribunal member.  Mr Govender has also acknowledged today that the Tribunal’s decision at [11] does identify that Mr Govender referred to his employment and provided a number of documents to the Tribunal concerning his circumstances.  Mr Govender also accepts that the Tribunal member may have looked at the documents after the hearing.  I note that the Tribunal at [11] of the decision has acknowledged that evidence, but stated that these matters do not address the relevant statutory criteria.

8. Mr Govender’s complaint and ground that I will come to was that the hearing was very short and he wished he had more time including to put his marital relationship and the circumstances of the breakdown to the Tribunal member.  In Court today, Mr Govender says that the hearing was short and to the point.

The Tribunal’s decision

1. The Tribunal considered whether Mr Govender satisfied the requirements in cl.801.221 for the grant of the Visa.

2. On 14 February 2018, the Tribunal, as I have said, made a decision affirming the Delegate’s decision to refuse the Applicant (Mr Govender) a partner Visa.  The Tribunal, at [7] and [8], found that:

   (a)in July 2016, the Applicant and his sponsoring partner informed the Department that the relationship had ceased;

   (b)on 12 December 2017, the Applicant confirmed to the Tribunal that he and his partner were separated and he did not meet any of the exceptions for the grant of the Visa; and

   (c)in oral evidence to the Tribunal the Applicant confirmed the relationship with his sponsoring partner had ended.

3. At [8], the Tribunal found that, at the time of its decision, there was no evidence that Mr Govender and his former sponsoring partner “live[d] together or not apart on a permanent basis”, maintained a joint household or shared housework, shared finances, had joint liabilities or jointly contributed to expenses, continued to represent themselves in a relationship, socialised together, continued to be in a mutual commitment to the relationship, or drew companionship and support from each other.

4. The Tribunal was not satisfied, on the limited evidence before it, that at the time of its decision, Mr Govender and his former sponsoring partner had a mutual commitment to a shared life to the exclusion of all others. The Tribunal was not satisfied that their relationship was continuing or ongoing.  The Tribunal was ultimately not satisfied that at the time of its decision, Mr Govender was the spouse or the de facto partner of the sponsoring partner.

5. The Tribunal found that Mr Govender did not meet any of the exceptions in cl.801.221(3) to (6).  At [10] of the decision, the Tribunal concluded that Mr Govender did not meet the primary criteria for the Visa in cl.801.221. 

6. As I have noted, Mr Govender gave oral evidence to the Tribunal that he had been living in Australia for a number of years, and referred to his employment and supporting documents.  The Tribunal’s decision at [11] found that these matters did not address the relevant statutory criteria for the grant of the Visa.  The Tribunal affirmed the decision under review.

Grounds of review

1. The application for judicial review to this Court was filed on 5 March 2018.  It was prepared by Mr Govender’s then solicitors who have subsequently withdrawn.  A notice of intention to withdraw was filed and served by his then solicitors on 26 April 2018, and a notice of withdrawal was filed on 18 July 2018.  In his application, Mr Govender has sought only one order in the proceeding, namely a writ of certiorari that the Tribunal decision is squashed.  Mr Govender has not sought a writ of mandamus that this matter be decided according to law so that, if I were to find if there was a jurisdictional error, the Tribunal would not be prevented from making the same jurisdictional error.  That said, in the circumstances those deficiencies in the application do not matter because of the conclusion that I have reached.

2. The application for judicial review raised 17 grounds of review as follows (without alteration):

   1. The applicant applied for Partner Visa (Residence) subclass 801 which was refused by the Department of Home Affairs (hereinafter called "DHA") (formerly Department of Immigration & Border Protection).

   2.Then the applicant applied to the Administrative Appeal Tribunal (hereinafter called "AAT") for review of the decision to refuse his visa application.

   3.The AAT refused applicant's review application on 14 February 2018 which he is of the view that the decision is erroneous and insufficient.

   4.The AAT and DHA have failed to consider applicant's case in accordance with the NATURAL JUSTICE AND PROCEDURAL FAIRNESS.

   5.The AAT has failed to serve the documents in proper manner.

   6.The AAT and DHA have failed to do correspondences correctly and sufficiently

   7.The AAT failed to take into consideration some important procedural errors made by the department in assessing the applicant's visa application

   8.The AAT denied applicant's right to representation to assist him in presenting the case properly and adequately.

   9.The AAT failed to take into consideration some important procedural errors made by the department in assessing my application.

   10.In this respect, the AAT should have accepted the applicant's case and allowed applicant with such representation in order to properly presented applicant's case but hence was denied by the AAT.

   11.The AAT denied the procedural fairness and natural justice in not g1vmg applicant the opportunity to properly consider his legal position, given his legal position, given applicant's limitation in the legal system

   12.The AAT failed to determine the applicant's application for review according to the law, in taking a view of the Migration Act and Regulations that was unnecessarily limited and constricted and which fitted the AAT member's personal view rather than a comprehensive view of the relevant law.

   13.The AAT Member therefore regarded the applicant as being no different to any other Applicants who lodged an invalid and unsuccessful application and this constituted a failure to afford the procedural fairness

   14.The AAT Member therefore failed to afford procedural fairness by taking a personally subjective view of the applicant's actual circumstances

   15.Had the AAT given proper consideration to the facts, instead on merely noting and refusing it without proper consideration, the AAT should have come to a different view of applicant's case for review

   16.The applicant believes that he would be eligible to be granted for previous application.

   17.The applicant respectfully submit that the AAT has failed in considering natural justice and procedural fairness, and further has not given thorough consideration of the applicant's latest case

The proceeding in this Court

1. Before me today, Mr Govender was informed about the consequences of proceeding today, namely that, if I found against him, he would be subject to a costs order at the request of the Minister.  He was also informed, on the Minister’s submission, that, if he withdrew at this late stage, the Minister would be seeking costs.  After a short adjournment I invited Mr Govender to put his case.  And Mr Govender has taken that opportunity.

2. I should note that Mr Govender appeared before me without the assistance of an interpreter.  He has engaged fully with the hearing today, as he appears to have in the Tribunal, with an excellent command of English.  Mr Govender confirmed that he did not seek an interpreter.  I also note that Mr Govender has not filed any amended applications nor any written submissions.  I invited him to make oral submissions today.

Consideration

1. I have referred to the 17 grounds that Mr Govender has put in the application.  The pleaded grounds overlap and there are no particulars.  Some of the grounds, for example, grounds 1 and 2, are not grounds of review but simply set out the background of the Visa application.  The Minister’s solicitor has submitted in writing, and I have encapsulated for the parties today, in the course of this hearing, that the Applicant’s grounds may be understood as asserting the following:

   (a) that the Tribunal decision was erroneous and insufficient, from which I understand Mr Govender to expand upon today as saying that very limited time was given to him in the hearing, although he has now agreed that he did not meet the primary criteria, and that the Tribunal member sought to ask him whether he met any of the alternative criteria;

   (b)that the Applicant was denied procedural fairness and natural justice.  Today, Mr Govender has said that this ground comes down to not having much hearing time before the Tribunal;

   (c)that the Tribunal failed to serve documents in a proper manner.  Mr Govender has said to the Court today that he does not press that ground;

   (d)that Mr Govender was denied a right to representation in presenting his case. I interpose in relation to this ground that Ms Evans for the Minister drew the Court’s and Mr Govender’s attention to the provisions of s.366A of the Act which expressly provide that there is no right of representation in these applications before the Tribunal;

   (e)that the Tribunal should have come to a different view.  Mr Govender has said he is not pressing this ground. It is seeking a merits review, not a ground of judicial review before this Court.

   (f) that the Tribunal “took a personally subjective view of the Applicant’s actual circumstances”.  In relation to this ground, I took Mr Govender to [11] of the Tribunal’s decision.  As I have said, Mr Govender accepted that at [11], the Tribunal member recorded that she did look at the folder of documents. He now does not press that ground, as I understand it, in the light of his appreciation of the statutory criteria for the Visa.  It is not surprising that the hearing before the Tribunal was brief in the circumstances. 

2. I note the matters at [7], [8], [9] and [10] of the Tribunal decision, and Mr Govender’s explanation at the hearing before me today of what occurred at the Tribunal hearing. 

3. Mr Govender has explained briefly to this Court the circumstances of the breakdown of his personal relationship with his wife.  He explained the strains on his marriage caused over the issue of seeking to have a child, 2 failed attempts at IVF, and a brief pregnancy that did not proceed to full term, and that those events did, as he said, “tear us apart”.  And at the end there was nothing to salvage. 

4. Mr Govender is to be commended for his candid explanations to this Court, and his candid disclosures to the Department and the Tribunal that his marriage had ended.  However, the primary criteria for the grant of the Visa required that Mr Govender is married and in a spousal relationship with his sponsoring partner, which, under the legislation, requires that the spousal relationship be continuing at the time of the decision.  On my review of the Tribunal decision, and on hearing from Mr Govender in Court today, I have concluded that the Tribunal decision was correct; that Mr Govender was afforded procedural fairness.

5. In the circumstances of Mr Govender’s candid acceptance that he no longer complied with the criteria, and that nonetheless he was afforded an opportunity to present both written and oral submissions, made oral submissions, and that the folder of documents was accepted by the Tribunal and referred to at [11] of the Tribunal decision, notwithstanding that the documents were not relevant to the criteria or the application, I conclude that there was no denial of procedural fairness or natural justice.  I find that, although the Tribunal hearing time was short, it was not insufficient.

6. There is nothing to suggest in any way that the Tribunal did not comply with any of its statutory obligations under Part 5 of the Act:

   (a)Mr Govender was given the opportunity to comment on adverse information pursuant to s.359A of the Act, that information being under his own hand, and from his former wife, that the relationship had ended, and that Mr Govender did respond to that opportunity;

   (b)Mr Govender was invited to appear before the Tribunal to give evidence and present arguments in compliance with s.361 of the Act, and Mr Govender did appear;

   (c) there is no right of representation before the Tribunal: see s.366A of the Act; and

   (d) otherwise, to the extent that Mr Govender says the Tribunal should have come to a different view (and I note he does not press this ground orally today) that complaint would cavil with the Tribunal’s factual findings and would be to invite this Court to engage in an impermissible merits review, which the Court cannot do.

7. I reject any complaint that the Tribunal took a personally subjective view of Mr Govender’s circumstances.  That is not what the Tribunal did.  Rather the Tribunal decision reveals that the Tribunal looked at the statutory criteria, found that the statutory criteria were not met, and, relying on Mr Govender’s own concessions that the relationship had ceased, found that he did not meet the criteria for the grant of the Visa, and so affirmed the Delegate’s decision.

Conclusion

1. The application fails to establish any jurisdictional error on the part of the Tribunal.  The application will be dismissed. 

2. I have heard the parties on costs.  Having regard to the information sheet issued by the Administrative Appeals Tribunal MR25 November 2017, a copy of which is in the court book in evidence before me, Mr Govender’s employment as a valet parking attendant as evidenced in the documents before the Tribunal (also in the court book), and his submissions today, I am persuaded that, notwithstanding that the Minister is a model litigant, and I am advised in the ordinary course parties may reach agreement as to payment on terms, Mr Govender be permitted to pay the Minister’s costs in instalments.  I so order.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:     27 August 2018