Kareem v Minister for Immigration

[2019] FCCA 3749

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAREEM v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3749

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Partner visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicant a Partner (Provisional) (Class UF) (Subclass 309) visa – first respondent raises objection as to competency of the applicant’s application – Application in a Case by first respondent seeks an order that the application filed in this Court by the applicant be dismissed as incompetent – applicant was not the review applicant in the Administrative Appeals Tribunal Decision Record – applicant does not have standing pursuant to s.478(a) and s.479(a) of the Migration Act 1958 (Cth) to bring an application to this Court – application filed in this Court struck out as incompetent.

Legislation:

Migration Act 1958 (Cth), ss.338, 347, 477, 478, 479, 486C

Applicant: ABIMBOLA MORUFAT KAREEM

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1633 of 2019

Judgment of: Judge Dowdy

Hearing date: 9 December 2019

Delivered at: Sydney

Delivered on: 9 December 2019

REPRESENTATION

The Applicant initially appeared by telephone from Nigeria having earlier sought in writing and confirming orally at the hearing that Mr A. Kareem should appear and make submissions on her behalf, which leave was granted.

Counsel for the First Respondent: Mr H. Gao

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 2 July 2019 is struck out and dismissed as incompetent.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $3,737.

3. Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 23 January 2020 to file any Application for leave to appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1633 of 2019

ABIMBOLA MORUFAT KAREEM

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction and Background

1. The Applicant is a female citizen of Nigeria aged 41 years, having been born on 28 April 1978.

2. By Application filed in this Court on 2 July 2019 she seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 24 June 2019 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 20 September 2018 refusing to grant to her a Partner (Provisional) (Class UF) (Subclass 309) visa (Partner visa).

3. In his Response filed in this Court on 12 July 2019 the Minister contended that the proceeding should be dismissed because the Applicant was not “the Applicant in the review by the relevant Tribunal” as required by s.479(a) of the Migration Act 1958 (Cth) (the Act).

4. By Notice of Objection to Competency also filed on 12 July 2019 the Minister asserted Grounds of Objection as follows:

   1. The decision of the Second Respondent dated 24 June 2019 was made in relation to Mr Adewale Kolapo Kareem, who was the review applicant before the Second Respondent, pursuant to s 479(a) of the Migration Act 1958 (Cth).

   2. As these proceedings were not commenced by Mr Adewale Kolapo Kareem, they have not been commenced by any party with standing to seek review: see ss 478(a) and 486C of the Migration Act 1958 (Cth).

5. The gentleman (Mr Kareem) named in Ground 2 of the Notice of Objection to Competency claims to be in a de-facto relationship with the Applicant who presently lives in Nigeria. As review applicant and sponsor of the Applicant’s Partner visa application he has commenced a proceeding (SYG 2251 of 2019) in his own right in this Court in which he asserts, on identical grounds to those invoked in this proceeding, jurisdictional error by the same Tribunal with respect to its decision dated 24 June 2019. Thus at the moment there are two proceedings in this Court attacking the same Tribunal decision, with Mr Kareem’s Application set down for final hearing before me on 28 April 2020.

6. In the application for the Partner visa the Applicant was the visa Applicant and Mr Kareem was the sponsor. Before the Delegate the same situation pertained. Before the Tribunal Mr Kareem was the ‘review applicant’ (see s.347(2) at [7] below) and the sponsor, and the Applicant was the ‘visa applicant’. This was because a criterion for the grant of the Partner visa relevantly required that at the time of its grant the Applicant be, as she was, outside of Australia and sponsored by her spouse or de-facto partner, in this case Mr Kareem: see cl.309.412 and cl.309.213 of Sch.2 to the Migration Regulations 1994 (Cth).

7. Pursuant to s.338(5) of the Act the Delegate's decision to refuse the Partner visa is a Part 5-reviewable decision. Under s.347(2)(b), only Mr Kareem as the sponsor for the Partner visa can seek review of the Delegate's decision by the Tribunal. Those sections relevantly provide as follows:

   338 Definition of Part 5-reviewable decision

   …

   (5) A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

   (a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

   (b) the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

   (i)     an Australian citizen...

   347 Application for review of Part 5-reviewable decisions

   …

   (2) An application for review may only be made by:

   …

   (b)    if the Part 5-reviewable decision is covered by subsection 338(5) or (8)–the sponsor or nominator referred to in the subsection concerned; or...

8. Further, ss.478, 479 and 486C of the Act relevantly prescribe the parties to a judicial review proceeding in this Court, as follows:

   478 Persons who may make application

   An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:

   (a) if the migration decision concerned is made on review under Part 5 or 7 or section 500 - the applicant in the review by the relevant Tribunal; or ...

   …

   479 Parties to review

   The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and

   (a) if the migration decision concerned is made on review under Part 5 or 7 or section 500–the applicant in the review by the relevant Tribunal

   ...

   486C Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court

   (1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit Court or the Federal Court that raises an issue:

   (a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens; and

   …

   (2) Those persons are:

   (a) a party to a review mentioned in section 479; or ...

Application in a Case 

1. By Application in a Case filed on 29 October 2019, the Minister sought the following orders:

   1. Pursuant to r.42.06(5) of the Federal Circuit Court Rules 2001 (Cth), the applicant’s application filed on 1 July 2019 be dismissed on the basis that it is incompetent.

   2. The Applicant pay the first respondent’s costs of this application and of the proceeding generally.

Consideration

1. In my view, because Mr Kareem was the review applicant before the Tribunal, by force of s.479 of the Act only he has standing to seek judicial review of the Tribunal’s decision in this Court. The Applicant has no standing and the proceeding is therefore, as submitted by the Minister, incompetent. In my view, the orders sought by the Minister in the Application in the Case should be made. No injustice will be done because of this as the decision of the Tribunal will be the subject of judicial review at the hearing on 28 April 2020 in this Court.

2. The matter has been before the Court on a number of occasions prior to today when I have permitted Mr Kareem to appear for the Applicant, who as I have said is in Nigeria, although on a number of occasions she has appeared by telephone.

3. I note that at one point I was attracted by the idea, before Mr Kareem had started his own case, of simply joining Mr Kareem as the proper Applicant to this proceeding. However, it was put to me by Mr Gao, who appeared for the Minister, that the statutory provisions made the present proceeding from its inception to be incompetent, invalid and of no force and effect and that it could not be saved by joining Mr Kareem. This issue was not finally determined before Mr Kareem, quite reasonably, then decided for abundance of caution to bring his own proceeding, as he has done.

4. The Minister has acted reasonably at all times prior to today, in that the Minister earlier signified that, in the event that this proceeding was given up, he would be prepared to allow the Applicant’s case herein to be dismissed with no order as to costs and that if Mr Kareem then started his own case the Minister would not take any objection to the grant of an extension of time under s.477(2) of the Act. However, the Applicant in this proceeding decided to continue to pursue her Application as she has done up to and including today, knowing that Mr Kareem had started his own separate proceeding.

Conclusion

1. In my view, the Application filed in this Court on 2 July 2019 is incompetent and is to be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 19 December 2019