Gupta v Minister for Immigration

[2019] FCCA 3088

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3088

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Residence) (Class BS) visa – whether the Tribunal considered all of the evidence and into account relevant considerations – whether the Tribunal applied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476
Migration Regulations 1994 (Cth), rr.1.15, 1.23, 1,24, 1.25, sch.2, cl.801.221

Applicant: MUKESH GUPTA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3453 of 2016

Judgment of: Judge Street

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Sydney

Delivered on: 29 October 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr J Dadgar

HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDERS: 29 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3453 of 2016

MUKESH GUPTA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 18 November 2016 affirming the decision of a delegate not to grant the applicant a Partner (Residence) (Class BS) visa.

2. The applicant is a citizen of India. On 29 April 2014, the applicant applied for a Partner (Residence) (Class BS) visa. On 31 August 2015, a delegate found that the applicant failed to meet the criteria for the grant of a Partner (Residence) (Class BS) visa.

3. On 9 September 2015, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant was invited to and attended a hearing on 8 September 2016, which was rescheduled to that date, to give evidence and present arguments.

4. The Tribunal identified the background to the application for review and summarised the applicant’s evidence in relation to his relationship with the sponsor. The Tribunal noted that the delegate refused the grant of a Partner (Residence) (Class BS) visa to the applicant because the applicant’s relationship with the sponsor had ceased.

5. The Tribunal referred to the applicant’s claim that there had been family violence in his relationship with the sponsor as the sponsor threatened to withdraw her sponsorship and shouted at him all the time. The applicant also claimed that the violence was not physical but verbal and that he had been advised by his lawyer to call the police. The applicant also claimed that if he had recorded the history of the sponsor’s behaviour he could show it. The applicant also claimed that he and the sponsor argued all the time, that he was mentally upset and that his sleep was disturbed.

6. The Tribunal noted that the applicant sought an opportunity to put on further submissions and material in relation to family violence. The Tribunal identified receiving documents from the applicant on 6 October 2016 and 1 November 2016, being a mental health treatment plan, an undated letter from a doctor and two letters from a social worker.

7. The Tribunal identified the requirements of cl 801.221(2)(c) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal also identified the requirements of s 5F of the Act and r 1.15A(3) of the Regulations.

8. The Tribunal found that, at the time of decision, the applicant and the sponsor do not satisfy s 5F of the Act as they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them is not genuine and continuing. The Tribunal referred to the applicant and the sponsor living separately and apart on a permanent basis. The Tribunal, therefore, found that the applicant does not meet the criteria under cl 801.221 of the Regulations.

9. The Tribunal referred to the applicant’s claim that he met the alternative criterion under cl 801.221(6)(c) of the Regulations, in that he allegedly suffered family violence committed by his sponsoring partner during the relationship.

10. The Tribunal referred to the requirements of r 1.23 of the Regulations in respect of judicially determined and non-judicially determined family violence, the definition of “relevant family violence” in r 1.21 of the Regulations and the requirements of r 1.23(3), (5), (7), (12) and (14) of the Regulations. The Tribunal also referred to the requirements of r 1.23 of the Regulations and the requirement for evidence in accordance with r 1.24 of the Regulations.

11. The Tribunal identified the evidence which had been provided by the applicant, as referred to above, and found that the documents provided do not establish a claim of family violence under the Regulations. The Tribunal noted that the reports do not disclose family violence but focus upon the applicant’s mental health following his marriage which, according to the evidence, was characterized by conflict between the applicant and the sponsor. In these circumstances, the Tribunal was not satisfied that, at the time of the decision, the applicant and the sponsor were in a spousal relationship or that the applicant met the alternative criteria in cl 820.221 of the Regulations.

12. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 7 December 2016. On 6 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that there had been cheating by the sponsor upon him and that he now had a wife who is pregnant. The applicant’s submissions from the bar table, in substance, invited this Court to engage in merits review. This Court has no power to review the merits. Nor can the Court determine the matter on compassionate or discretionary grounds as the Court has no power to do so. Accordingly, nothing said by the applicant from the bar table identified any jurisdictional error.

The ground

1. The ground in the application is as follows:

   1. The Tribunal erred in law as it failed to consider the applicability of cl 820.221(3) to the facts of the case and evidence adduced

   Particulars

   The applicant in his evidence had clearly stated that he is undergoing family violence. He also stated that the sponsor mentally harassed him by constantly scolding and abusing him. Threatening to withdraw the sponsorship and seeking that all money be provided to her. This clearly portrays a situation of family violence. Without further questioning the self represented applicant more about the family violence related issues, the Tribunal brushes aside the evidence on record proving family violence. The Tribunal simply states that the evidence on record is insufficient in relation to cl 820.221. The applicant claims non judicially determined family violence for which purpose he had given three certificates (i) Two forms by social worker (ii) the other from the treating Doctor. Instead of considering these materials and discussing them the Tribunal simply states that there is insufficient evidence regarding the family violence.

2. The application alleged that the Tribunal erred by effectively holding that the applicant was not the subject of ongoing family violence.

3. In order for an application to be taken to include a non-judicially determined claim of family violence, the alleged victim or other person on his or her behalf must present certain evidence in accordance with r 1.24 of the Regulations. This evidence must include a statutory declaration under r 1.25 of the Regulations and evidence of the type and number of items specified by the Minister by the instrument for the purpose of r 1.24 of the Regulations, being IMMI12/116.

4. It is apparent that the applicant did not, even though given an opportunity to do so, provide a statutory declaration meeting the requirements of r 1.25 of the Regulations which means that the requirements of r 1.24(a) of the Regulations were not satisfied.

5. The Tribunal referred to the documents that the applicant provided which did not meet the requirements of the Regulations. In these circumstances, the Tribunal was correct in holding that there was no non-judicially determined claim of family violence pursuant to r 1.23(9) of the Regulations. The Tribunal’s adverse finding that there was no such claim in accordance with the Regulations was correct.

6. It is also apparent that the Tribunal expressly referred to the requirements of r 1.23 of the Regulations, the requirement for the evidence to support a claim of non-judicially determined family violence and to r 1.24 of the Regulations.

7. The applicant’s disagreement with the Tribunal’s adverse finding identified in ground 1 does not identify any relevant error by the Tribunal. The Tribunal’s determination that there was no claim advanced by the applicant meeting the requirements of the Regulations so as to be a claim of non-judicially determined family violence was correct. Accordingly, no jurisdiction error as identified in ground 1 is made out.

8. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 29 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:  

Date:  25 November 2019