Kalia v Minister for Immigration
[2018] FCCA 4012
•22 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KALIA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 4012 |
| Catchwords: MIGRATION – Application for judicial review – partner visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.359A |
| Cases cited: MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 |
| Applicant: | ABHINAV KALIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1668 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 22 November 2018 |
| Date of Last Submission: | 22 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 November 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application filed 1 August 2017 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1668 of 2017
| ABHINAV KALIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) with respect to a spouse visa application. The applicant is a citizen of India, who applied for a partner visa on the basis that he was married to his sponsor, Ms F. In support of the visa application, he provided a brief statement from himself and Ms F and a statement from his friend. Various other supporting documents were provided.
In July 2015, a delegate refused the application for the visa and the applicant applied to the Tribunal in August 2015. The Tribunal affirmed the delegate’s decision in August of 2016 and the matter was taken on judicial review. In March 2017, by consent, the Tribunal’s decision was quashed and the matter remitted for redetermination by the Tribunal.
In March 2017, the Tribunal contacted the applicant about the matter and invited him to attend a hearing before the Tribunal on 25 May 2017. The applicant attended the hearing and provided some additional material. That led to the Tribunal having some concerns with respect to a Facebook page and the information therein. The Tribunal therefore issued a letter under section 359A of the Migration Act 1958 (Cth) on 26 May 2017 asking for comment on that material. The Tribunal also, on 30 May, invited the applicant to attend a hearing on 13 June. The applicant neither responded to the section 359A letter nor attended the further hearing that had been offered. The applicant did provide a note saying that he was unwell for that day but did not request an adjournment nor provide any submissions addressing the issues that had been raised.
Consistent with authority in this Court, a medical certificate that merely says a person is unfit for work or unwell is insufficient for an adjournment. A certificate, to be sufficient, needs to be addressed to the court or tribunal, set out the nature of the medical condition and certify that the medical condition is such as to prohibit a person appearing in court or attending at a tribunal hearing. The nature of the considerations are different to those concerning a person’s employment rights and sick leave entitlements under various awards due to the importance of attending at a court or tribunal.
The Tribunal carefully considered the applicant’s circumstances, looking at the various matters that were required to be considered under the Migration Regulations 1994, including financial aspects, the nature of the household, social aspects and the nature of the parties’ commitments to each other.
The fundamental problem that the applicant faces is that he is no longer in a spousal relationship with Ms F, who has since had a child to another man. The applicant said, at the hearing before me, that he and Ms F talk sometimes and that he remains hopeful that they may get back together at some time in the future.
Grounds of Judicial Review
The applicant sets out three grounds for judicial review in his application. As identified by Counsel for the Minister, each is quite general in its terms and as a result I needed to hear some submissions from the applicant to identify what each of the grounds were actually pointing to.
Ground 1
In ground 1, the applicant simply says:
1. Jurisdictional error, tribunal failed to consider all the evidence provided on hearing.
In this regard, the applicant explained that he considered that the Tribunal failed to consider the note that he was unwell and could not attend at the hearing on the second occasion.
The Tribunal did address these issues (at [13] to [16]), effectively pointing out that, because the applicant had not responded to the section 359A letter, he was not entitled to appear in any event. It seems that the applicant’s representative had sought another hearing date, but the Tribunal addressed this squarely in paragraph 16. The passage is in the following terms:
13. On 26 May 2017 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The adverse information put to the review applicant was that a social media account belonging to his sponsor showed that she is the mother of a young child. The child had been born during the claimed relationship with the sponsor but has not been declared as a child of the relationship. The applicant advised the Tribunal at a hearing that he and the sponsor did not have children yet.
14. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 9 June 2017, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
15. The review applicant did not provide comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision, taking into account the evidence available to the Tribunal.
16. On 30 May 2017 the applicant had been invited to a further hearing scheduled for 13 June 2017, the same day the applicant submitted a late response to the Tribunal’s 359A invitation. The applicant and sponsor did not attend the hearing and the applicant submitted a Medical Certificate, also dated 13 June 2017 stating he is receiving medical treatment and is unfit for work on 13 and 14 June 2017 inclusive. On 14 June 2017 the applicant’s representative requested another hearing date. However, as already stated, the applicant has lost any entitlement under the Migration Act 1958 to appear at a hearing to give evidence and present arguments and the Tribunal has proceeded to a decision.
In the circumstances, I am not persuaded that this amounts to a ground for judicial review.
Ground 2
Under ground 2, the applicant said:
2. Tribunal did not constitute a significant degree of hardship to me and my spouse while making the decision.
I clarified at the hearing that the applicant was concerned that the Tribunal did not consider the hardship to him and/or his spouse if he was not granted the visa.
The difficulty in this case is that the question was not whether or not the applicant was suffering any hardship, but rather whether or not he was in fact in a spousal relationship. Whether the applicant was suffering hardship or not, he would be not be entitled to the visa if he were not a spouse with Ms F. The Tribunal concluded that the applicant was not in a spousal relationship, after traversing various aspects of the relationship. It is also clear, from the submissions made at the hearing before me, that the applicant continues not to be in a spousal relationship with Ms F, although remains hopeful that something might be renewed in the future.
In these circumstances, it is difficult to conclude that there is any jurisdictional error on the part of the Tribunal.
Ground 3
The third ground for review is in the following terms:
3. Natural justice, I believe that I was not given proper extension for hearing postpone as my sponsor was away with her family and was to attend the hearing at tribunal.
There are, as Counsel for the Minister identifies, significant evidentiary problems with this ground. There is no evidence before the court that the spouse was intending to attend the hearing, or was away, or indeed supporting him at all. It would not be difficult to conclude that the relationship was over and she was not likely to attend to support the applicant. Nor does it appear that these issues were raised squarely with the Tribunal.
In these circumstances I am not persuaded that this matter is a basis upon which judicial review can take place.
The applicant further expanded upon this ground, saying that he was hopeful of renewing the relationship in the future and therefore wanted an adjournment or a further hearing in the hope that the spousal relationship would be renewed. This is not a basis for showing error by the Tribunal, nor a basis for remitting the matter for rehearing or adjourning the matter in this case.
I am therefore of the view that ground 3 cannot succeed.
Counsel for the Minister, quite properly, pointed out that the section 359A letter is in terms that are not identical to the words of the statute and drew my attention to the authorities about the wording that is required with respect to letters under section 359A. The relevant provision sets out:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
As was held by Bromberg J in MZYFH v Minister for Immigration and Citizenship [2010] FCA 559, it is a failure to comply with the statute if the letter contained the word “could” rather than the word “would” as required by section 359A(1)(a). One can see why the error occurred in the decision in MZYFH, as no doubt the author of the letter in that case was concerned that the word “would” may have indicated a degree of prejudgment that was not in fact present on the part of the person issuing the letter. Carefully read, it seems the word “would” is used in the subjunctive, to indicate what, in common parlance, would be described using the word “could”. Nonetheless, the statute sets out that word, and, as MZYFH makes clear, that word must be utilised in the letters.
In this case, in the letter, the Member said (at CB p.186):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The letter then went on to provide the details of the information and explanation of why it was relevant before stating:
If the Tribunal relies on this information in making a decision, it may lead to the decision under review being affirmed.
The letter, in this case, has clearly utilised the precise words in the statute, but interpolated the subclause, “subject to your comments or response”, and in the latter part made clear that the Member had not prejudged the matter.
It seems to me that the Member has sufficiently complied with the statute not to amount to an error that would be judicially reviewable. Indeed to the extent that other words have been added, it appears clear, on the facts of this case, to have been on the basis of ensuring that the applicant did not have the impression that the Member had prejudged the matter. Rather, it showed that the Member was genuinely concerned to hear the response from the applicant before making any findings in this regard.
In the circumstances, I am not persuaded that this amounts to an error that would found a ground for judicial review in this case.
I therefore dismiss the application before the court.
[Further argument ensued]
The costs sought are less than the scale fee.
In the circumstances, I find they are reasonable. The applicant has been unsuccessful. It is appropriate costs follow the event.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 19 July 2019
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