Kariyawasam v Minister for Immigration

[2016] FCCA 584

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARIYAWASAM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 584

Catchwords:
MIGRATION – Review of a decision by the Migration Review Tribunal – application for a Partner (Temporary) (Class UK) visa – reinstatement of matter sought – no jurisdictional error – dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr. 16.05(2)(a), 44.12

Migration Act 1958 (Cth), ss. 65, 362B(2)
Migration Regulations 1994 (Cth), sch.2: cls.820.211(2), 820.211(2)(d), sch.3: criterion 3001

MZYPZ v MIAC [2012] FCA 478

Applicant: JAYANTHA KARIYAWASAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1058 of 2015

Judgment of: Judge Hartnett

Hearing date: 2 March 2016

Delivered at: Melbourne

Delivered on: 2 March 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Briffa

Solicitors for the First Respondent: The Australian Government Solicitor

ORDERS MADE ON 2 MARCH 2016

1. The Application in a Case dated 18 September 2015 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1058 of 2015

JAYANTHA KARIYAWASAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. On 12 May 2015 the Applicant filed an application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) made on 22 April 2015. That decision affirmed a decision of a delegate of the Minister not to grant the Applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of the substantive application were as follows:-

   “1.    The decision of the Migration Review Tribunal is made without jurisdiction and is affected by jurisdictional error.

   Particulars

   The Tribunal has erred in that it has failed to take into account all the circumstances of the case when considering the expression compelling reasons.

   The Tribunal when considering the circumstances of the case, has failed to give proper weight to those circumstances by failing to take into account relevant factors, especially the situation in Sri Lanka and his safety and taking irrelevant factors into account.”

3. Dismissal of the application for judicial review was sought by the First Respondent pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) on the grounds that the application failed to raise an arguable case for the relief claimed, and that the decision under review was not affected by jurisdictional error.

4. The matter first came before Registrar Caporale on 2 September 2015.  On that day the Applicant failed to attend Court.  The Court ordered as follows:-

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

   2. Pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Commonwealth) the application be dismissed.

   3. The applicant pay the first respondent’s costs, fixed in the sum of $1,367.”

5. Thereafter, and on 21 September 2015, the Applicant filed the Application in a Case which is before the Court this day.

6. The Applicant sought reinstatement of his application for judicial review filed on 12 May 2015. In essence, he sought to have the Orders made by Registrar Caporale on 2 September 2015 set aside pursuant to r.16.05(2)(a) of the Rules. In support of that Application is an Affidavit sworn or affirmed by the Applicant on 18 September 2015 by the Applicant and filed on 21 September 2015.

7. The First Respondent opposes the reinstatement application on the basis that:

   a)the Applicant has not provided a satisfactory explanation for his failure to attend the first Court date (when the substantive application was dismissed); and

   b)the substantive application does not raise an arguable case for the relief claimed.

Background

1. The Applicant is a citizen of Sri Lanka who arrived in Australia on 8 March 2010 as the holder of a Tourist (Subclass 676) visa which ceased on 8 June 2010.

2. On 18 May 2010 the Applicant lodged an application for a Protection visa which was refused by a delegate of the Minister on 25 August 2011. The Applicant then lodged a review application with the Refugee Review Tribunal, as it then was, (now the Administrative Appeals Tribunal) (‘the RR Tribunal’).

3. On 22 June 2012 the RR Tribunal affirmed the delegate’s decision and on 19 December 2012 the Applicant lodged an application for judicial review of the RR Tribunal’s decision in this Court. The outcome of that judicial review application was a remittal of the matter to the RR Tribunal on 2 May 2013 for reconsideration.  That remittal occurred by consent of the parties. However, on 6 September 2013, the Applicant withdrew his review application before the RR Tribunal.

4. On 7 March 2013 the Applicant married an Australian citizen and on 4 October 2013 the Applicant lodged his Partner visa application.

5. The Applicant was sponsored by Ms Prasadika Dona Nayomi De Costa Dassanayake.  Ms Dassanayake was born in Sri Lanka in 1970.  She became an Australian citizen in 2012.

6. In the marriage certificate which the Applicant submitted to the Department he indicated that his usual place of residence was Dandenong North in Victoria while the sponsor’s usual place of residence was South Australia.

7. In the sponsorship form submitted with the Partner visa application, it was indicated that the Applicant and sponsor first met on 6 October 2012 in Adelaide.  It was stated that they committed to a shared life together to the exclusion of all others on 7 March 2013 when they married in Narre Warren in Victoria.

8. In the sponsorship form the sponsor indicated she had lived in South Australia since November 2007.  In the visa application the Applicant and the sponsor provided the same residential address in South Australia. 

9. In a statutory declaration lodged in support of the Partner visa application, made by Mr Samuel Joseph on 16 September 2013, it was stated that Mr Joseph lived in the same house in the opposite room to the Applicant, at an address in Dandenong. That address (as noted by the Tribunal at a later time and in paragraph 31 of its statement of decision and reasons) was the same address provided by the Applicant in his review application lodged with the Tribunal on 22 May 2014.

10. On 9 May 2014 a delegate of the Minister refused to grant the Partner visa because the Applicant did not satisfy cl.820.211(2)(d) of sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) as the Applicant did not meet criterion 3001, and the delegate found there were no compelling reasons to not apply the relevant sch.3 criteria.

11. On 22 May 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.  He was represented by a migration agent. 

12. On 6 February 2015 the Tribunal invited the Applicant to attend a hearing before it on 21 April 2015 by sending a hearing invitation to his agent.  The agent responded that day indicating that he, the Applicant and the Applicant’s wife would attend the hearing.

13. On 4 March 2015, the Applicant’s representative notified the Tribunal that he no longer acted for the Applicant. 

14. On 14 and 20 April 2015, the Applicant was reminded of the hearing date by text message from the Tribunal. 

15. The Applicant did not attend the hearing on 21 April 2015. He did not submit a medical certificate or any further evidence as to his reason for non-attendance. The Tribunal then made its decision as set out in paragraph one of the reasons. The Applicant then sought judicial review of that decision.

Reinstatement

1. The Applicant says in his affidavit evidence sworn or affirmed 18 September 2015 and before the Court this day on the hearing of his reinstatement application, that he did not attend the directions hearing of 2 September 2015 because he was “ill and unwell (stomach bug) and not fit enough to attend Court”.  He also deposed to not having telephoned the Court to advise of his non-appearance as he:- 

   “…knew that they would require me to produce a medical certificate stipulating my medical condition.”[1]

   The Applicant deposed to not obtaining a medical certificate, in circumstances where he could not obtain a medical appointment. 

   [1] Affidavit of Jayantha Kariyawasam filed on 21 September 2015 at [d].

2. The Applicant conceded that he knew the purpose of the directions hearing was to agree to a procedural timetable and that it would “only take a few minutes”.  There is no evidence before the Court this day which explains why the Applicant would have been unable to attend a directions hearing for a short period of time, even if he was ill with a stomach bug.  The Applicant also demonstrated an understanding of adjourning a proceeding in his affidavit, where he stated he “should be given at least one adjournment”.  Despite this understanding, he did not attempt to contact the Court or the lawyer for the First Respondent on the day of the first Court date to request that the proceeding be adjourned. 

3. Whilst the Court accepts there is no prejudice to the Minister, other than costs which can be compensated for, in the application for reinstatement being granted, the Court considers the explanation offered by the Applicant in his Affidavit in support of his Application in a Case as to his non-attendance at Court on 2 September 2015 to be, as submitted by Counsel for the First Respondent, inadequate and unsatisfactory. 

4. The Applicant also argues that he has a good case with “a good chance of success” and that it would be a denial of natural justice to refuse his application to achieve reinstatement of his substantive proceeding.  The Court rejects such a submission.  The substantive application does not raise an arguable case and it is, at best, an impermissible attempt at merits review. 

The Tribunal

1. The Applicant did not attend the Tribunal hearing on 21 April 2015 and did not provide to the Tribunal any further evidence about his claims that he feared returning to Sri Lanka. These claims were set out in a letter dated 5 April 2014 responding to an earlier letter emanating from the Department, requesting of the Applicant evidence of any compelling reasons to not apply sch.3 criteria in his circumstances. The Tribunal noted that had the Applicant attended the Tribunal hearing it would have discussed the matter further with the Applicant. In all the circumstances and based on the evidence before it, the Tribunal was unable to be satisfied that the Applicant’s concerns about his safety in the event that he had to return to Sri Lanka at the time he applied for the Partner visa, would amount to compelling reasons to not apply the sch.3 criteria in his circumstances.

2. The Tribunal noted the Applicant was not the holder of a substantive visa at the time he lodged his visa application and thus was required to meet certain criteria as set out in sch.3 to the Regulations, unless there were compelling reasons for not applying those criteria.

Criterion 3001

1. In order to satisfy criterion 3001, the Tribunal noted the Application for the visa must have been lodged within 28 days of the day on which the Applicant last held a substantive visa, being 8 June 2010, when his Subclass 676 visitor visa ceased.  The Tribunal found the application for the visa was made on 4 October 2013, in excess of three years later, and thus not made within 28 days of the relevant date.  Thus the Applicant did not satisfy criterion 3001.

2. Given that the Tribunal found the Applicant did not meet the relevant sch.3 criteria, the Tribunal was then required to consider, and did so, as to whether there were compelling reasons for not applying the criteria.

3. The Tribunal noted that the expression “compelling reasons” was not defined for these purposes, however noted the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead the decision maker to make a positive finding in favour of waiving the required criteria.[2]

   [2] MZYPZ v MIAC [2012] FCA 478 at 10.

4. The Tribunal also had regard to the Department’s updated policy and noted the revised policy guidance issued on 1 July 2014 had removed certain previous examples of what could constitute compelling reasons. The Tribunal then focused on the circumstances that resulted in an Applicant becoming unlawful. The Tribunal noted that the Applicant had held a number of bridging visas since 18 May 2010. The Tribunal then considered all of the circumstances of the Applicant’s case as set out in the evidence before it. It considered whether there were ‘compelling reasons’ to waive criterion 3001. Ultimately, the Tribunal was not satisfied there were compelling reasons to not apply the sch.3 criteria and found the Applicant did not, therefore, meet cl.820.211(2) of the Regulations.

5. The Tribunal had regard as set out in paragraph 10 of its Statement of Decision and Reasons (‘the Decision Record’) to the discretion it had under s.362B(2) of the Act to reschedule the Applicant’s appearance before it, or to delay its decision on the review, in order to enable the Applicant’s appearance to be rescheduled. The Tribunal noted in paragraph 11 of the Decision Record that the Applicant was advised of the hearing on 6 February 2015 and he in turn sent a Response to Hearing form on that date indicating that he would attend. He was then sent two SMS reminders in the week before the hearing. At the time the hearing was scheduled and at the time of the Tribunal writing its decision, the Applicant had not provided any medical evidence or written explanation for his non-attendance.

6. The Tribunal determined to make its decision on the review without taking any further action to enable the Applicant to appear before it. That was reasonable in the circumstances of this case. The Tribunal considered whether there were compelling reasons for not applying the Sch.3 criteria and having considered the circumstances of the Applicant and his sponsoring partner separately and cumulatively was not so satisfied that there were compelling reasons to not apply the sch.3 criteria.

7. The Tribunal’s findings in the Decision Record were open to it on the material before it, and no jurisdictional error attends the decision of the Tribunal.  Indeed, there is no arguable case for the relief as claimed in the substantive application.

8. Accordingly the Court shall not exercise its discretion to set aside the orders that have been made by the Court. It is not in the interests of justice to do so. The only submissions made by the Applicant this day, the Court noting the First Respondent relied upon written submissions dated 22 January 2016, were that the Applicant “wished to stay here” (meaning Australia) and would “think about it when I go back”. The Application shall be dismissed and costs shall follow the event. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 March 2016