Hasanuzzaman v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 250

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hasanuzzaman v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 250

File number(s):

SYG 2069 of 2020

Judgment of:

JUDGE PAPADOPOULOS

Date of judgment:

27 February 2025

Catchwords:

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Subclass 820 Partner (Temporary) (Class UK) visa – withdrawal of sponsorship – s 375A certificate – futility – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 359A, 359AA and 474

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Migration Regulations 1994 (Cth) cll 820.211, 820.221 and 820.224

Cases cited:

Chi Chong Le v Minister for Immigration and Border Protection [2019] FCAFC 178

Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZYBR v Minister for Immigration and Citizenship (2007) 147 CLR 297

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

18 February 2025

Place:

Sydney

Applicant

In Person

Solicitor for the Respondents

Ms C Warren of Sparke Helmore Lawyers

ORDERS

SYG 2069 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HASANUZZAMAN

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE PAPADOPOULOS
DATE OF ORDER:	27 FEBRUARY 202527 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application filed on 2 September 2020 be dismissed.

2.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $6,500.

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

JUDGE PAPADOPOULOS

INTRODUCTION

1. Before the Court is an application filed on 2 September 2020, under s 476 of the Migration Act 1958 (Cth) (Act), seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 August 2020. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 820 Partner (Temporary) (Class UK) visa (Subclass 820 visa).

   BACKGROUND

2. The applicant is a male national of Bangladesh who first arrived in Australia on 2 December 2011 as a holder of a Subclass 676 Tourist visa. That visa ceased to be in effect on 2 March 2012.[1] That being his last substantive visa, the applicant has not held a substantive visa since 2 March 2012.[2]

   [1] Court Book (CB) 289.

   [2] CB 289 to 290.

3. On 13 January 2012, the applicant applied for a permanent visa. On 30 June 2012, a delegate of the Minister refused that application. This decision was affirmed by the Refugee Review Tribunal on 13 August 2013. Following a series of appeals against the decision of the Tribunal, the final appeal was dismissed by the High Court on 15 October 2015.[3]

   [3] CB 289.

4. On 6 November 2015 and 28 June 2016, the applicant made two separate requests for Ministerial intervention, both of which were refused.[4]

   [4] CB 289.

5. On 28 July 2016, the applicant applied for a Subclass 602 Medical Treatment visa. On 5 August 2016, a delegate of the Minister refused to grant that visa. On 22 August 2016, the applicant sought review of that decision by the Tribunal. However, on 8 November 2016, the Tribunal decided that it had no jurisdiction to hear the matter.[5]

   [5] CB 290.

6. On 17 October 2016, the applicant made an application for a Subclass 820 visa and a Subclass 801 Partner (Residence) (Class BS) visa (Subclass 801 visa) on the basis that he was in a de facto relationship with his sponsor.[6] The applicant claimed that he met his sponsor in early 2014 and they began living together on 9 April 2014. The applicant claimed that he and his sponsor registered their relationship on 12 February 2016.[7]

   [6] CB 3 to 32.

   [7] CB 447 at [9].

7. On 18 December 2017, a delegate of the Minister refused to grant the applicant a Subclass 820 visa and a Subclass 801 visa. The delegate was not satisfied that the applicant met the requirements in cl 820.221 in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because at the time of the application, the applicant did not hold a substantive visa and did not meet criterion 3001 in Schedule 3 to the Regulations. Nor was the delegate satisfied that there were compelling reasons not to apply the Schedule 3 criteria.

   Application for review

8. On 4 January 2018, the applicant applied to the Tribunal for a review of the delegate’s decision in relation to the Subclass 820 visa.[8]

   [8] CB 319.

9. On 23 January 2020, the sponsor contacted the Minister’s Department and withdrew their sponsorship of the applicant.[9]

   [9] CB 346.

10. On 16 June 2020, the Tribunal invited the applicant to comment on or respond to information provided to it by the Department relating to:

    (a)the withdrawal of the sponsorship by, and the cessation of the relationship with, his sponsor;

    (b)the applicant having not entered into arrangements to pay his outstanding debt to the Commonwealth.

    The applicant was also provided with a copy of a certificate issue pursuant to s 375A of the Act and invited to comment upon its validity.[10] The response was to be provided by 30 June 2020.

    [10] CB 346 to 347.

11. On 30 June 2020, the applicant responded to the Tribunal setting out the following claims:

    (a)the sponsor moved out of the applicant’s house due to a difference of opinion, however the applicant believed the separation was temporary and not permanent;

    (b)the applicant intended to contact the Commonwealth to make arrangements to pay his debt;

    (c)the applicant is suffering from cancer and will not receive adequate treatment if forced to leave Australia; and

    (d)the COVID-19 pandemic was very dangerous in Bangladesh and, due to the applicant’s health, he would be vulnerable if he returned.[11]

    [11] CB 351.

12. On 30 July 2020, the applicant appeared before the Tribunal via telephone.[12] At hearing, the applicant acknowledged that his relationship with the sponsor had ended and that the sponsor had withdrawn his sponsorship.

    [12] CB 438 to 441.

    The Tribunal’s decision

13. On 3 August 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a Subclass 820 visa.[13]

    [13] CB 446 to 455.

14. The Tribunal set out the background to the matter and identified that the issue before it was whether the applicant satisfied the requirements under cll 820.221 and 820.224.

15. In respect of cl 820.221, the Tribunal in its decision:

    (a)identified that the applicant’s sponsor had withdrawn their sponsorship and that there was no further material before the Tribunal indicating that the parties had joint ownership of assets or financial resources or any likelihood of reconciliation;

    (b)found that the applicant and sponsor do not have a mutual commitment to a shared life to the exclusion of all others, that their relationship was not genuine and continuing, and that the applicant and sponsor neither lived together nor intended to live together in the future;

    (c)found, in the absence of any claims, that there was not a child of the relationship, that the sponsor had not died or that the applicant had not suffered relevant family violence committed by the sponsor; and

    (d)concluded that the applicant had failed to satisfy cl 820.221.

16. In its consideration of cl 820.224, the Tribunal in its decision:

    (a)stated that it was not plausible for the applicant to contend that he was unaware of the debt he owed;

    (b)noted that there was no credible evidence as to any attempt made by the applicant to contact the Department in respect of paying the debt or making payment arrangements;

    (c)recorded that it did not accept the applicant’s contention that he could not make repayments due to the COVID-19 pandemic; and

    (d)concluded that the applicant had failed to satisfy cl 820.224.

17. Further, in its decision, the Tribunal stated that it does not support any application made by the applicant for Ministerial intervention. It nevertheless concluded that it remained open for the applicant to pursue such a request should he wish to do so.

    RELEVANT LEGISLATION

18. Clause 820.211 of the Regulations relevantly provided:

    (1) The applicant:

    (a) is not the holder of a Subclass 771 (Transit) visa; and

    (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

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

    (a) the applicant is the spouse or de facto partner of a person who:

    (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

    (c) the applicant is sponsored:

    (i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

    (ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

    (A) has turned 18; and

    (B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (d) in the case of an applicant who is not the holder of a substantive visa—either:

    (i) the applicant:

    (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

    (B) satisfies Schedule 3 criterion 3002; or

    (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

19. Clause 820.221 of the Regulations relevantly provided:

    (1)  In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

    (a)  continues to meet the requirements of the applicable subclause; or

    (b)  meets the requirements of subclause (2) or (3).

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

    (a)  would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

    (b)  satisfies the Minister that the applicant would have continued to be the spouse or   de   facto   partner of the sponsoring partner if the sponsoring partner had not died.

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

    (a)  the applicant would continue to meet the requirements of subclause   820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

    (b)  either or both of the following circumstances applies:

    (i)  either or both of the following:

    (A)  the applicant;

    (B)  a dependent child of the sponsoring partner or of the applicant or of both of them;

    has experienced family violence committed by the sponsoring partner;

    (ii)  the applicant:

    (A)  has custody or joint custody of, or access to; or

    (B)  has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the sponsoring partner:

    (C)  has been granted joint custody or access by a court; or

    (D)  has a residence order or contact order made under the Family Law Act 1975 ; or

    (E)  has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.

20. Clause 820.224 of the Regulations relevantly provided:

    (1)  Each member of the family unit of the applicant who is an applicant for a Subclass 820 visa is a person who:

    (a)  subject to subclause   (2)--satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

    (b)  if the person had turned 18 at the time of application--satisfies public interest criterion 4019; and

    (c)  satisfies public interest criterion 4020.

    (1A) Each member of the family unit of the applicant who is not an applicant for a Subclass 820 visa is a person who:

    (a)  subject to subclause (2) --satisfies public interest criteria 4001, 4002, 4003 and 4004; and

    (b)  satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

    (2)  Paragraphs (1)(a) and (1A) (a) do not apply to an applicant who:

    (a)  is a dependent child of an applicant referred to in subclause   820.211(5); and

    (b)  entered Australia as the holder of a visa of the same class as the visa held by that other applicant.

    PROCEEDINGS BEFORE THIS COURT

    Originating application

21. The applicant commenced proceedings by way of an originating application, filed on 2 September 2020, containing a single ground of review without particulars (reproduced without alteration):

    1.I AM NOT SATISFIED WITH THE DECISION AND I ATTEPT TO SOUGHT A LOWYER BUT DUE TO FINANCIAL HARDSHIP BECAUSE I HAVE LOST MY JOB FOR COVID-19 PANDEMIC.

    I WILL PROVIDE ALL THE SUPPORTING DOCUMENTS AS SOON AS BEING ABLE TO MANAGE.

22. The application was accompanied by an affidavit of the applicant, attached to which was a copy of the Tribunal’s decision.

23. In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. This matter was explained to the applicant at hearing where he was afforded an opportunity to particularise his grounds and raise any further matters which indicated that the Tribunal had erred in making its decision.

24. The Court has also scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error, noting the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58] - [77], [100] and [112] - [113].

    CONSIDERATION

25. Asked at hearing to expand on, and further particularise his ground of review, the applicant made a number of submissions. In particular, the applicant submits that as a result of his diagnosis in 2016 of Chronic Myeloid Leukemia, he has found it particularly difficult to manage his affairs. Further, the applicant submits that the breakdown of his relationship in early 2020 was very sudden and took a great toll on him.

26. The applicant also submits that he did not know of the debt to the Commonwealth until he was notified by way of the Tribunal’s invitation to comment sent on 16 June 2020. Finally, the applicant submits that he is a vulnerable person and wishes for the Court to take that into consideration.

27. Whilst the Court is sympathetic to the applicant’s personal circumstances, and as described to the applicant at hearing, the Court cannot take these matters into account whilst conducting its task of judicial review.

28. The Minister contends, and I agree, that the sole ground for review listed above is not a proper ground of review, and fails to establish any jurisdictional error on the Tribunal’s part.

29. Accordingly, the ground of review must fail.

    Further matters

30. However, for the benefit of the Court, and the applicant as a litigant in person, the Minister’s representative stepped through their written submissions and identified three matters to be brought to the attention of the Court. Those three matters relate to:

    (a)whether the Tribunal was correct on each of the two bases it found in making its decision, those being:

    (i)that cl 820.221 was not met; and

    (ii)that cl 820.224 was not met;

    (b)whether error arises from the Tribunal treatment of the s 375A certificate and the information covered by that certificate; and

    (c)futility.

31. Accordingly, I will discuss each of these matters below.

    Tribunal’s cl 820.221 finding

32. The applicant at the Tribunal hearing conceded that his relationship with the sponsor had ended and that he had not had any direct contact with the sponsor since January 2020.[14]

    [14] CB 450 at [24].

33. The Minister submits that the combined effect of cll 820.211(2)(c) and 820.221(1)(a) required that, at the time of the application being made and at the time of the Tribunal’s decision, the applicant was to be sponsored by the sponsor. Given the sponsorship withdrawal, the Minister further submits that the applicant had not claimed, nor was there any evidence indicating that the sponsoring partner had died, the applicant had experienced family violence committed by the sponsoring partner, or that there was a child of the relationship. Accordingly, the applicant did not meet any of the alternative criteria provided by subcll 820.221(2) or (3).

34. On that basis, the Minister submits, and I agree, that the Tribunal’s finding that the applicant had not met cl 820.221 was the only finding open to it.

35. As such, the Tribunal did not err in its finding in relation to cl 820.221.

    Tribunal’s cl 820.224 finding

36. In relation to cl 820.224, the Minister submits that the Tribunal correctly identified that in order to satisfy Public Interest Criterion 4004 (PIC 4004) at the time of the decision, the applicant must be a person who does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. The Tribunal identified that the applicant had a current debt to the Commonwealth in the sum of $12,086 as a result of his previously unsuccessful judicial review application and related appeals.

37. The Tribunal did not accept the applicant’s claim that he was not aware of the debt until the Tribunal wrote to him, and was of the view that the applicant would have been aware of all costs orders made in the Federal Magistrates Court and the Federal Court. On the evidence before it, the Tribunal was not satisfied that the applicant had made any arrangements for the repayment of his debt to the Commonwealth.

38. The Minister submits that in the circumstances outlined above, it was open to the Tribunal to find that the applicant did not meet PIC 4004 and therefore did not satisfy cl 820.224. I accept that submission.

39. Accordingly, no jurisdictional error arises in relation to the Tribunal’s finding.

    Section 375A certificate

40. The Minister submits that the Tribunal informed the applicant about the existence of the s 375A certificate, provided him with a copy and invited his comment as to its validity. I find that this submission is borne out by the evidentiary material.[15] The Minister took me to paragraph [29] of the Tribunal’s decision, which states:

    The Tribunal raised with the applicant and his agent the certificate on the Department’s file issued pursuant so s.375A of the Act. The applicant’s agent said that they had no comment to make about this certificate. The applicant’s agent confirmed that it was acknowledged that the applicant did not meet the criteria for the grant of the visa but was asking the Tribunal to support an application for Ministerial intervention.

    [15] CB 346 to 347.

41. The Minister contends that the Tribunal made no express finding on the validity or otherwise of the s 375A certificate and the Tribunal’s reasons indicate that the certificate did not play any role in its decision. This is evinced by the Tribunal’s consideration of the applicant’s claims and evidence, beginning from paragraph [31] of its decision, which was confined to an assessment of cll 820.221 and 820.224. Whilst I observe some of the information covered in the certificate was considered by the Tribunal as part of its consideration whether to support a Ministerial intervention referral, that information was not relied upon for the purpose of affirming the delegate’s decision and thereby did not warrant an express finding on the certificate’s validity or notification pursuant to ss 359A or 359AA of the Act: see Chi Chong Le v Minister for Immigration and Border Protection [2019] FCAFC 178 at [41].

    Futility

1. In addition, as submitted by the Minister, it would be futile for this matter to be remitted to Tribunal.

2. I agree with the Minister that even if a jurisdictional error could be found within the Tribunal’s decision (although not conceded by the Minister), the Court should exercise its discretion to withhold relief because there would be no utility to any remittal. The Minister submits that the applicant cannot meet cl 820.221 upon any remittal, and no useful result could ensue: see SZYBR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [28] - [29].

3. Therefore, even if I had found jurisdictional error in this case (which I do not), it would be futile to remit the matter as a newly constituted Tribunal would be bound to affirm the decision under review as the applicant would be unable to satisfy cl 820.221.

4. As was submitted by the Minister, the foregoing constitutes a sufficient basis for the application to be dismissed.

   CONCLUSION

5. Therefore, for the above reasons, the application before this Court is dismissed.

6. Whilst the decision of the Tribunal is free from jurisdictional error, it remains a decision made under s 349 of the Act, and, in all the circumstances of this case, it would be desirable that consideration be given by Minister to any available avenue of Ministerial intervention should that be pursued by the applicant.

7. It should also be noted that as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is amended to ‘Administrative Review Tribunal’.

   Costs

8. I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant to be fixed in the sum of $6,500. I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions and appearance at the hearing.

9. Whilst I acknowledge the applicant’s submission that he may have difficulty paying such an amount as a result of his poor financial situation, the applicant’s financial standing is not a sound basis upon which to rest an argument that the Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare (2019) 265 CLR 164 at 176 – 177; [2019] HCA 25 at [35] (Sangare) per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ, as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:

   In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.

10. I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $6,500.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

Associate:

Dated:       27 February 2025