GU v Minister for Immigration

[2015] FCCA 2884

FEDERAL CIRCUIT COURT OF AUSTRALIA

GU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2884

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Partner (Temporary) (Class UK) visa – whether the applicant made an application within 28 days of holding a substantive visa pursuant to criterion 3001 – whether there were compelling reasons for not applying the Schedule 3 criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 cl.820.211, criteria 3001

Applicant: XIAOPENG GU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2273 of 2015

Judgment of: Judge Street

Hearing date: 27 October 2015

Date of Last Submission: 27 October 2015

Delivered at: Sydney

Delivered on: 27 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr J Pinder
Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2273 of 2015

XIAOPENG GU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitution writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 July 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary)(Class UK) visa. The applicant arrived in Australia on 16 March 2006 on a subclass TU 573 visa, which ceased on 5 April 2009. The applicant was granted a further subclass TU 573 visa, which ceased on 15 March 2011. The applicant then became an unlawful person in Australia until he lodged a claim for a Partner (Temporary)(Class UK) visa on 20 November 2012.

2. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant satisfied the Schedule 3 criteria was not satisfied there were compelling reasons for not applying those criteria. The Schedule 3 criteria in 3001 refers to:

   “the application is validly made within 28 days after the relevant day (within the meaning of subclause (2))”. 

3. It is clear that the application for the Partner (Temporary)(Class UK) visa was not made within the 28 days after the expiry of the subclass TU 573 visa on 15 March 2011, which was the relevant day within the meaning of the criteria.

4. It was in those circumstances that the delegate had to consider whether it was satisfied that there are compelling reasons for not applying those criteria.  The delegate referred to the applicant’s contention that he was unaware of the student visa cancellation and that he had been married since 23 August 2012 and the contention that both parties were committed to each other and that there was a business that was being run. The delegate found that there were not compelling reasons for not applying the criteria.

5. On 16 April 2015, the Tribunal wrote to the applicant inviting the applicant to attend a hearing, in accordance with the statutory regime, to be held on 17 June 2015. The applicant did not appear at the scheduled time and place and gave the Tribunal no satisfactory reason for his non-appearance. Accordingly, the Tribunal decided to determine the application on the material before it. Relevantly, the Tribunal found:

   16. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in 3001(2), as set out in the attachment to this decision.

   17. Department records show the applicant arrived in Australia on 16 March 2006 on a subclass TU 573 student visa which ceased on 5 April 2009. He was granted a further subclass TU 573 visa which ceased on 15 March 2011. The applicant lodged the claim for the Partner (Temporary) (Class UK) visa on 20 November 2012.

   18. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

6. The Tribunal then turned to the issue of compelling reasons and relevantly found:

   24. The applicant had provided documentation he claimed demonstrates evidence of a genuine relationship. He considered that as he was in a genuine relationship this was a compelling reason not to apply the Schedule 3 criteria. The Tribunal notes that the presence of a genuine relationship is common to many partner applications where there are issues concerning Schedule 3 criteria. In the absence of any further evidence in this application, the Tribunal is not satisfied that the presence of a genuine relationship is a compelling reason to not apply the Schedule 3 criteria.

   25. With his application the applicant had stated that any separation would cause emotional hardship to him and his wife. The Tribunal accepts that a period of separation may cause emotional hardship if partners are separated from one another for an extended period of time. It notes that this is a common experience for applicants who have to apply for Partner visas offshore to migrate to Australia. The Tribunal is not satisfied that the emotional hardship due to the separation is a compelling reason not to apply the Schedule 3 criteria.

   26. On the basis of the evidence before it the Tribunal is not satisfied that taken individually or together, there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2){d)(ii).

   27. There is no evidence before the Tribunal that the applicant meets the criteria for the grant of the visa under 820.211 (5)-(9).

   28. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

7. On 24 September 2015, a Registrar of the Court made orders permitting the applicant to file an amended application, affidavit evidence and submissions.  The applicant filed an affidavit in which he sought to raise evidence of domestic violence in a relationship with his married partner, who was the sponsor in relation to the visa.  No such issue of domestic violence was raised before the Tribunal, and, accordingly, I accept the first respondent’s submission that the material is not relevant to establishing any jurisdictional error by the Tribunal.

8. The applicant’s affidavit also annexed a psychologist’s report.  That psychologist’s report was made on 2 October 2015 and does not demonstrate an incapacity or inability by the applicant to have attended the hearing on 17 June 2015.  I accept the first respondent’s submission that the psychologist’s report is not relevant.  The grounds of the application are as follows:

   1. AAT did not grant my visa despite I met all the conditions to grant my spouse visa.

   2. I went through family relevant violence during my relationship and I could not submit to the AAT as I was very depressed. I want the FCC to consider my family relevant violence documents and ask the AAT to reconsider my case.

9. In relation to the first ground, it is clear that this is an impermissible challenge to the adverse findings of the Tribunal.  It was open to the Tribunal to make those findings and no jurisdictional error is made out by ground 1. 

10. In relation to ground 2, domestic violence was not an issue raised before the Tribunal and cannot make out any jurisdictional error being raised for the first time in this Court.  To the extent that the applicant has said he was depressed, there is no evidence that establishes he was unable to attend the hearing on 17 June 2015.  The request by the applicant to have the Tribunal reconsider the issue of family violence does not identify any ground of jurisdictional error by the Tribunal.  Nothing was said by the applicant from the bar table to identify any jurisdictional error. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 29 October 2015