Hunjan v Minister for Immigration

[2015] FCCA 2417

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUNJAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2417

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) – where applicant could not meet criterion 3001 of schedule 3 of the Migrations Regulations – where tribunal not satisfied that there were compelling reasons for not applying criterion – no jurisdictional error  – application dismissed.

Legislation:

Migration Act 1958, ss.5F(1), 5F(2)

Migration Regulations 1994, regs.820.211(2), 820.211(2)(a), 820.211(2)(d), 820.211(2)(d)(ii) of Schedule 2, 3001, 3003, 3004 of Schedule 3

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478

Applicant: HARIDESHWAR SINGH HUNJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 458 of 2015

Judgment of: Judge Jarrett

Hearing date: 7 August 2015

Date of Last Submission: 7 August 2015

Delivered at: Brisbane

Delivered on: 7 August 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2. The application filed on 26 May, 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 458 of 2015

HARIDESHWAR SINGH HUNJAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. The applicant seeks judicial review of a decision of the second respondent made on 29 April, 2015 whereby the tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a Partner (Temporary) (Class UK) visa to the applicant.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. Despite a direction that permitted the applicant to file an amended application more fully particularising his grounds of review and a direction requiring him to file and serve written submissions in support of his application, he has done neither.

4. The first respondent has filed written submissions to which I have had regard.

Background

1. The applicant is a citizen of India.  He arrived in Australia in July, 2009 as the holder of a Student (Temporary) (Class TU) visa.  That visa ceased on 15 June, 2011 and although the applicant lodged a further visa application in May, 2011 that application was subsequently withdrawn.

2. The applicant lodged an application for a Partner (Temporary) (Class UK) visa on 23 March, 2012. The applicant was sponsored by his spouse, Claudette Vera Kay. On 5 September, 2013 a delegate of the first respondent refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant was the spouse of the sponsor and therefore did not meet the requirements of cl.820.211(2) of the Migration Regulations 1994.

3. The applicant applied to have the delegate’s decision reviewed by a migration review tribunal.  A tribunal was convened and the tribunal invited the applicant to appear at a hearing before it and to give evidence and make arguments in support of his application.  That hearing occurred on 16 April, 2015.  The applicant appeared at the hearing and was represented by an agent.

4. On 29 April, 2015 the tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa.

5. In its reasons for decision, the tribunal recorded that cl.820.221(2)(a) of Schedule 2 of the Regulations required that, at the time the visa application was made, the applicant was a spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

6. The tribunal also recorded that spouse is defined in s.5F(1) of the Act.  By that subsection a person is the spouse of another where the two persons are in a married relationship.  What constitutes a married relationship is defined by s.5F(2) of the Act.  The applicant claimed to be the spouse of his sponsor, Claudette Vera Kay, who is, it seems an Australian citizen.

7. Additionally, the applicant had to meet the criteria set out in 3001, 3003 and 3004 in Schedule 3 to the Regulations because, at the time of his application for the visa, the applicant did not hold a substantive visa: cl.820.211(2)(d) of Schedule 2 of the Regulations. The applicant needed to satisfy each of those criteria – they are not alternatives. However, in the event that the applicant could not satisfy each of those criteria, the applicant had to satisfy the tribunal that there were “compelling reasons for not applying those criteria”.

8. Schedule 3 criteria 3001 required the applicant to show that he had lodged a temporary partner visa application within 28 days of his last substantive visa lapsing.  In this case the applicant’s last substantive visa lapsed on 15 June, 2011.  The applicant’s visa application was not lodged until 23 March, 2012.  Accordingly, the tribunal found, correctly with respect, that the applicant did not meet Schedule 3 criteria 3001.

9. The tribunal was not satisfied that there were “compelling reasons” for not applying the Schedule 3 criteria.  The tribunal:

   a)considered that even if it were satisfied that the applicant and sponsor were in a genuine relationship at the time of the application, that would not of itself justify the application of the Schedule 3 criteria;

   b)found that it was not satisfied that the sponsor was so dependent upon the applicant for support that he should not have been required to leave Australia to lodge his application; and

   c)found that any forced separation and strain on the parties’ relationship did not constitute a compelling reason for the non-application of the Schedule 3 criteria as the same argument could be made in any spouse application.

10. Consequently, the tribunal affirmed the delegate’s decision to refuse the grant of the visa.

11. The applicant filed an application for review to this Court on 26 May, 2015. 

The Grounds of Review

1. The grounds of review are set out in the application for review as follows:

   1. The delegate refused to grant the visa on the basis that I did not satisfy cl.820.221(2) because my relationship with my sponsor, Ms Claudette Vera Kay, did not meet the requirements of s.5F in relation to spouse relationships

   2. Tribunal member claims my relationship was extremely short prior to your decision to marry and I provided no evidence of the inception and development of your relationship.

   3. Tribunal member has considered my statements pertaining to schedule 3 criteria. Although compelling reasons and evidences were presented, member has claimed I do not meet the relevant schedule 3 criteria.

2. In the supporting affidavit filed with the application, the grounds are re-stated, although ground one appears to have been amended to read:

   1. It is deemed that in my case there were errors in finding facts whose existence is a condition precedent to jurisdiction. The tribunal has not considered the compliance with the condition cl.820.221(2) because my relationship with my sponsor, Ms Claudette Vera Kay, did not meet the requirements of s.5F in relation to spouse relationships.

3. The tribunal’s reasons reveal that the tribunal did not make a finding that the applicant and his sponsor’s relationship did not meet the definition of a spousal relationship. The tribunal expressed concerns in relation to the genuineness of that relationship but did not consider that it was necessary to determine the application before it on the basis of the nature of the relationship between the applicant and his sponsor.

4. The tribunal paid more attention to whether the requirements of 3001 of Schedule 3 to the Regulations were met.  They clearly were not.  And then, whether there were compelling reasons for not applying the criteria 3001, 3003 and 3004.

5. To the extent that the applicant’s submissions and his grounds of review focus upon what he says are erroneous findings by the tribunal about the nature and extent of his relationship with his spouse, his submissions are not to the point.  The tribunal did not decide the application on that basis.

6. The tribunal made the applicant aware, as indeed I accept he had been since the delegate’s decision, that it was necessary for the tribunal to be satisfied that compelling reasons not to apply the relevant Schedule 3 criteria existed.  It seems that the applicant determined to demonstrate compelling reasons by reference to the health of his spouse or partner at the time the visa application was made.  That was the relevant time for the tribunal to consider whether compelling reasons existed.

7. The tribunal properly directed itself to the law about the way in which it should interpret the phrase “compelling reasons”.  It referred to the relevant authorities including MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478 and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77. There is nothing erroneous about the principles identified and seemingly applied by the tribunal.

8. The tribunal records that the only reason advanced by the applicant at the hearing in support of his claim that the Schedule 3 criteria should not apply was that his partner’s health was such that her life would have been put at risk if he had been required to depart Australia to lodge his visa application in March, 2012.  He repeated those claims before me at this hearing.

9. Before the tribunal at its hearing there was no evidence, apart from the applicant’s assertions, to support what he claimed to be the compelling circumstances.  Accordingly, the tribunal indicated to him that he should provide a medical report, which explained his partner’s condition at the relevant time and whether he was providing support to her for her condition at that time.  The tribunal records that the only material submitted after the hearing was a letter that was from a medical practice and signed by a Dr Tyson.

10. The letter from Dr Tyson, contained within the court book at page 280 is less than illuminating.  It says:

    To Whom It May Concern

    Certified that my patient Claudete Kay is suffering from (RHD) Rheumatic Fever with Damaged Valves since Fourteen.  She had minor Heart Attack in January 2012. 

    If you have further queries for the same please don’t hesitate to call me.

11. The tribunal considered that that medical report was insufficient to demonstrate compelling reasons as to why the applicant needed to remain in Australia in March, 2012 in order to care for his partner.  As the tribunal observed, the letter contains very limited information as to the state of the applicant’s partner’s health at the time of the application for the visa.  There was no information as to the care arrangements that were in place for her at that time.  Accordingly, the tribunal was not satisfied that the applicant’s partner was dependent upon him or so dependent upon him for support at the relevant time that he should not have been required to leave Australia to bring his application.

12. The tribunal had regard to the statutory declarations by both the applicant and Ms Kay to the department and again to the tribunal during the review.  The tribunal assessed that evidence.  It cannot be said, in my view, that the tribunal did not take that into account.  The tribunal did however observe that it was unable to question Ms Kay about the matter because she was not present at the tribunal hearing.

13. The tribunal concluded therefore, that there were no compelling reasons for not applying the Schedule 3 criteria and because the applicant could not otherwise satisfy them, he could not meet the requirements of cl.820.211(2)(d)(ii).

14. The conclusion arrived at by the tribunal was the only conclusion, in my view, that was open to it having regard to the findings that the tribunal had made, particularly those in paragraphs 47 through to 50 of its reasons for decision.  The tribunal took into account all of the evidence that the applicant had placed before it and formed its own view about it.  The difficulty from the applicant’s point of view is that the tribunal did not use that evidence in the way in which the applicant hoped it might.

15. This review, it seems to me, is an attempt by the applicant to cavil with the merits of the tribunal’s decision.

16. No jurisdictional error is identified by the grounds relied upon by the applicant, nor, in my view, is any jurisdictional error revealed by the reasons for decision given by the tribunal.

17. In those circumstances, the application must be dismissed.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 August, 2015.

Associate: 

Date:         3 September 2015