FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ilaua v Minister for Home Affairs [2023] FedCFamC2G 350
File number(s): SYG 858 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 May 2023 Catchwords: MIGRATION – JUDICIAL REVIEW – Partner visa – application made 28 days after the expiry of substantive visa – compelling reasons – failure to give proper, genuine and realistic consideration – failure to take into consideration the evidence – no jurisdictional error established Legislation: Migration Act 1958 (Cth) Cases cited: AYY17 v Minister for Immigration and Anor (2017) FCCA 288
Namesa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 216
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 3 May 2023 Date of hearing: 3 May 2023 Place: Parramatta Solicitor for the Applicant: Mr Turner of Ray Turner Immigration Lawyers Solicitor for the Respondents: Mr Harvey of Australian Government Solicitor ORDERS
SYG 858 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KALAUSA ILAUA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the First Respondent’s costs of these proceedings.
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
JUSGE OBRADOVIC:
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“tribunal”) dated 4 March 2019, affirming a decision of the first respondent’s delegate (“delegate”) dated 4 December 2017, not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant applied for the visa on 19 June 2017 at a time when he was an unlawful non-citizen. He had not held a valid visa since 7 September 2014. Pursuant to sch.2, cl.820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth), and relatedly sch.3, an application for the visa must have been made within 28 days of the expiry of a substantive visa unless the Minister is satisfied that there are compelling reasons to dispense with that requirement.
The delegate and the tribunal found that no such compelling reasons existed and declined to grant the visa on that basis.
The applicant says that the tribunal’s decision was…
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Details
- Case
- [2023] FedCFamC2G 350
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the applicant, a national of Tonga, has challenged the tribunal's decision to affirm the delegate's refusal of his visa application. The applicant, who had overstayed his visitor visa, argued that the tribunal erred in its consideration of the evidence and failed to properly assess the existence of compelling reasons to waive the 28-day time limit for applying for the visa. The central legal issue before the court was whether the tribunal's decision was infected by jurisdictional error due to an inadequate assessment of the applicant's claims and evidence.
The court examined the grounds on which the tribunal affirmed the delegate's decision. The tribunal had considered the applicant's claims and supporting evidence, including letters of support from the applicant, his wife, church members, and family, as well as financial records. Despite this, the tribunal found no compelling reasons to waive the time limit, based on several factors, such as the absence of a long-standing relationship, the applicant's poor migration history, and the availability of other means to support the applicant's family in Tonga. The court found that the tribunal had given proper consideration to the evidence and the relevant statutory provisions and policies. The tribunal's assessment of the evidence and its conclusions were not shown to be unreasonable.
The court concluded that the tribunal did not err in its jurisdictional sense and affirmed the decision of the delegate. The court held that the applicant had not demonstrated that the tribunal failed to give proper, genuine, and realistic consideration to his claims or that the tribunal erred in its assessment of the evidence. The applicant's claims, while sympathetic, did not amount to compelling reasons under the Migration Act. The court dismissed the application for judicial review.
The Federal Court of Australia dismissed the application for judicial review, affirming the decision of the delegate and the tribunal. The court found that the tribunal had properly considered the evidence and the relevant legal principles and had not erred in its jurisdictional sense. The applicant's claims, while sympathetic, did not amount to compelling reasons under the Migration Act.
The court examined the grounds on which the tribunal affirmed the delegate's decision. The tribunal had considered the applicant's claims and supporting evidence, including letters of support from the applicant, his wife, church members, and family, as well as financial records. Despite this, the tribunal found no compelling reasons to waive the time limit, based on several factors, such as the absence of a long-standing relationship, the applicant's poor migration history, and the availability of other means to support the applicant's family in Tonga. The court found that the tribunal had given proper consideration to the evidence and the relevant statutory provisions and policies. The tribunal's assessment of the evidence and its conclusions were not shown to be unreasonable.
The court concluded that the tribunal did not err in its jurisdictional sense and affirmed the decision of the delegate. The court held that the applicant had not demonstrated that the tribunal failed to give proper, genuine, and realistic consideration to his claims or that the tribunal erred in its assessment of the evidence. The applicant's claims, while sympathetic, did not amount to compelling reasons under the Migration Act. The court dismissed the application for judicial review.
The Federal Court of Australia dismissed the application for judicial review, affirming the decision of the delegate and the tribunal. The court found that the tribunal had properly considered the evidence and the relevant legal principles and had not erred in its jurisdictional sense. The applicant's claims, while sympathetic, did not amount to compelling reasons under the Migration Act.
Orders
Orders of the court
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Background
Background to the litigation
The applicant says that the tribunal’s decision was infected by jurisdictional error because the tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and failed to take into consideration the evidence in support of the applicant’s claims.BACKGROUND The applicant is 34 years old and is a national of Tonga. The applicant most recently arrived in Australia on 7 August 2014 holding a visitor visa, which subsequently expired on 7 September 2014. From that date, until he applied for the visa the subject of these proceedings and was granted a bridging visa, he was an unlawful non-citizen. The applicant met his wife and sponsor of the visa, Mrs Ilaua, at Imanuela Revival Church (“Church”) where they both serve, on 1 September 2014. They married on 9 February 2017. Mrs Ilaua is an Australian citizen of Tongan descent and is currently 47 years of age. On 19 June 2017, the applicant lodged the visa application. On 4 December 2017, the delegate refused the application. On 5 March 2019, the tribunal affirmed the decision of the delegate. DELEGATE’S DECISION The delegate identified that, in the circumstances, the applicant was required to make the visa application within 28 days of the expiry of a substantive visa, unless there were compelling reasons to dispense with that requirement. The delegate invited the applicant to make submissions regarding the basis for which there were compelling reasons to dispense with the 28 day time period. Before the tribunal were various documents including, inter alia:(a)Letters of support from the applicant;(b)Letter of support from Mrs Ilaua;(c)Letters of support from members and leaders of the Church;(d)Statutory declaration of support from the applicant’s mother and brother in law; and(e)Financial records. The claims made by the applicant before the delegate, in support of the existence of compelling reasons included, inter alia; (a)That the applicant originally overstayed the visitor visa was because, had he returned to Tonga, he would have been homeless because the house he had resided in was inherited by his half-brother after the passing of his father;(b)By staying in Australia, the applicant was able to financially support his family who resided in Tonga;(c)The applicant is very involved in the Church as a volunteer leader and in the wider Tongan community;(d)The applicant has a strong genuine and affectionate relationship with Mrs Ilaua and their relationship would suffer if he had to move to Tonga; and(e)The applicant is a person of integrity and good standing. The delegate found that no compelling reasons existed to dispense with the time limit for, inter alia, the following reasons:(a)The existence of a genuine spouse relationship between the applicant and Mrs Ilaua, and the hardship suffered from the separation if the applicant were to leave and apply for the visa offshore, is not, in and of itself, a compelling reason;(b)The relationship between Mrs Ilaua and the applicant is not long standing;(c)There was no evidence that the applicant’s residence in Tonga was no longer available;(d)It is not an acceptable reason to overstay a visitor visa to financially support family members offshore;(e)Mrs Ilaua would continue to have emotional support if the applicant were to move back to Tonga because she resides in Australia with her family;(f)The applicant has a poor migration history; an(g)The whole of the relationship between the applicant and Mrs Ilaua up to the filing of the visa application occurred whilst the applicant was an unlawful non-citizen.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Subsequently, the delegate found that an essential requirement of the visa was not met and refused the application. TRIBUNAL DECISION The tribunal also identified that the 28 day time period was not met and therefore turned its mind to whether there were compelling reasons to dispense with that requirement. In addition to the material before the delegate, the applicant furnished further documents to the tribunal that he says further supports his contention that compelling reasons exist to dispense with the 28 day time period. The applicant put before the tribunal material and information going to the following:(a)The requirement to travel to Tonga and apply for a visa there would result in financial hardship;(b)Mrs Ilaua and the applicant are trying to conceive a child, and given her age, any further delay would decrease their chance of having children;(c)Mrs Ilaua and the applicant are investigating the option of IVF to have children;(d)The reason that the applicant and Mrs Ilaua did not live together prior to marriage was due to their Christian beliefs and Tongan cultural background and that they were in a committed relationship before marriage despite not cohabiting;(e)The applicant and Mrs Ilaua support the applicant’s mother and her children in Tonga, including funding medical treatment for the applicant’s mother;(f)The applicant assists in taking care of Mrs Ilaua’s mother, who has various medical problems; and(g)The applicant established and continues to lead the brass band at the Church. The applicant and Mrs Ilaua also gave oral evidence to the tribunal on 18 December 2018 and 22 January 2019. The tribunal noted that:[22] … The Explanatory Statement to Statuary Rules 1996, No. 75, which accompanied the introduction of the provisions, gave examples of where a waiver may be justified as: where there are Australian-citizen children from the relationship, or the applicant and his or her sponsor were already in a long-standing partner relationship which has been in existence for two years or longer.[23] Department policy states that the provisions are not intended to give, or be perceived to give, an unfair advantage to persons who fail to comply with their visa conditions or who deliberately manipulate their circumstances to give rise to compelling reasons. The Tribunal has had regard to policy guidance in the Department’s Procedures Advice Manual (PAM 3) which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status…[24] The Tribunal is not bound by Department policy… The tribunal found that there were no compelling reasons to dispense with the 28 day time period for, inter alia, the following reasons:(a)The reason given by the applicant for overstaying his visitor visa was not satisfactory nor does it provide a compelling reason;(b)The applicant’s mother is no longer homeless nor does she reference any current financial reliance on the applicant;(c)Whilst the applicant’s and Mrs Ilau’s relationship could be classified as long-standing, having commenced in March 2016, this in and of itself is not sufficient to be a compelling reason;(d)The emotional impact on the applicant and Mrs Ilaua physically separating is not in and of itself a compelling reason;(e)Mrs Ilaua would be able to visit the applicant in Tonga while any future visa application is made offshore;(f)The financial implications for Mrs Ilaua, of the applicant moving to Tonga and lodging a new visa application, would be offset by her not having to provide for him in Australia, which she currently does;(g)Assistance given to Mrs Ilaua’s mother by the applicant is not at a level of care sufficient to be a compelling reason, and that Mrs Ilaua’s mother’s needs could be tended to by other family members or community based aged care support services;(h)The applicant would be able to seek paid work in the construction industry in Tonga; and(i)There is no evidence that the applicant or Mrs Ilaua suffer from any diagnosed fertility issues, that IVF treatment is at an enquiry stage only and that the applicant and Mrs Ilaua could still continue with their endeavour to have a child through Mrs Ilaua visiting the applicant in Tonga whilst any future visa application is processed.
Ratio Decidendi
Legal Principle Established
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