Kaur v Minister for Immigration

[2015] FCCA 830

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 830

Catchwords:
MIGRATION – Application for review of a decision by the Migration Review Tribunal – Applicant responded to invitation to appear but failed to do so – Applicant failed to meet an essential requirement of the Migration Regulations 1994 (Cth), namely to provide a statutory declaration which complied with regs.1.24 and 1.25 of the Migration Regulations 1994 (Cth) – Migration Review Tribunal made no error in affirming the delegate’s decision – no failure to afford procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), Part 5, Division 5

Migration Regulations 1994 (Cth), regs.1.23, 1.24, 1.25, 1.26, cl.100.221 of Sch.2

Applicant: GURMEET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 250 of 2014

Judgment of: Judge Whelan

Hearing date: 18 March 2015

Date of Last Submission: 18 March 2015

Delivered at: Melbourne

Delivered on: 18 March 2015

REPRESENTATION

Counsel for the Applicant: Applicant appeared in person

Counsel for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application filed on 14 February 2014 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 250 of 2014

GURMEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application[1] for judicial review of a decision by the

   
   

   Migration Review Tribunal (“the Tribunal”) dated 7 February 2014.[2] The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the Applicant a Partner (Migrant) (Class BC) visa.[3]

   
   

   The original application in this matter was made on 10 February 2012.[4] The Applicant applied for both a provisional visa and a

   
   

   Partner (Migrant) (Class BC) visa. The Applicant, at that time,

   
   

   was sponsored by a Mr AMRINDER SINGH (“Mr Singh”), to whom she was married on 24 August 2011.

   [1] Application of Gurmeet Kaur filed 14 February 2014.

   [2] Court Book filed 17 June 2014, at pp.142-147.

   [3] Ibid, at pp.97-103.

   [4] Ibid, at pp.2-25.

2. On 13 August 2012, the Applicant was granted the temporary visa.

   
   

   On 22 October 2012, the Department of Immigration and Citizenship (“the Department”) wrote to the Applicant advising that it had received information that her relationship with Mr Singh had ceased.[5] The letter advised the Applicant that there were provisions for her to be granted a visa even if the relationship had ceased. It appears that there was no response to that correspondence.

   [5] Court Book filed 17 June 2014, at pp.85-87.

3. On 31 October 2012, the Department wrote again to the

   
   

   Applicant, giving her the opportunity to provide further information.[6] On 5 December 2012, the Applicant was contacted by the Department via telephone because they had received no response to their correspondence and the Applicant informed the Department that she “did not propose to respond to the letter”.[7] On 12 December 2012,

   
   

   the Department notified the Applicant that the delegate had refused to grant the visa.[8]

   [6] Ibid, at pp.90-92.

   [7] First Respondent’s Written Submissions filed 4 March 2015, p.2 at para.9.

   [8] Court Book filed 17 June 2014, at pp.93-96.

4. On 21 December 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision.[9] She was invited to attend a

   [9] Ibid, at pp.104-114.

   
   

   hearing before the Tribunal. On 9 January 2013, the Applicant

   
   

   provided to the Tribunal a statutory declaration that was made by a

   
   

   Mr EDWIN CYRIL KLEYNHANS (“Mr Kleynhans”).[10]

   
   

   Mr Kleynhans gives his occupation as ‘psychologist’. The Applicant also notified the Department that she would attend the hearing.[11] On

   
   

   10 January 2013, the Applicant advised the Tribunal that she was unwell and requested an adjournment of the hearing.[12]

   [10] Ibid, at pp.117-132.

   [11] Ibid, at pp.133-134.

   [12] Ibid, at p.135.

5. On 21 January 2013, the Tribunal rescheduled the hearing for

   
   

   7 February 2013.[13] The Applicant failed to attend the hearing.

   
   

   On 7 February 2013, the Tribunal therefore proceeded to deal with the matter in the absence of the Applicant and, on 14 February 2014,

   
   

   the Applicant made this application for review.

   [13] Ibid, at pp.138-139.

The Tribunal’s decision

1. The Tribunal made its decision without taking “any further action to allow or enable the applicant to appear before it”.[14] The Tribunal referred to the requirements of the Migration Regulations 1994 (Cth) (“the Regulations”) and found that, with respect to cl.100.221(1) of Sch.2 of the Regulations, the Applicant was unable to satisfy the requirements of sub-cl.(2) or sub-cl.(2A) of cl.100.221 of Sch.2 of the Regulations because the relationship between the Applicant and the sponsor, Mr Singh, had ceased.

   [14] First Respondent’s Written Submissions filed 4 March 2015, p.3 at para.20.

2. The Tribunal found that the Applicant was not able to meet any of the alternative requirements and that only one of the requirements,

   
   

   sub-cl.(4) of cl.100.221 of Sch.2 of the Regulations relating to the relationship ceasing and family violence, was potentially relevant.

   
   

   The Tribunal was not satisfied, however, that the Applicant had met the requirements for a claim of family violence to be considered.

   
   

   Under reg.1.23 of the Regulations, it was a requirement that the Tribunal be provided with evidence in accordance with reg.1.24 of the Regulations. Part of that evidence required a statutory declaration of the kind described in reg.1.25 of the Regulations. Essentially,

   
   

   that required that there be a statutory declaration by the person claiming that family violence had occurred to them or a child of the family. 

3. The only statutory declaration provided by the Applicant was the statutory declaration by Mr Kleynhans. The Tribunal considered the statutory declaration by Mr Kleynhans but, in the absence of a statutory declaration which met the requirements of reg.1.25 of the Regulations, it found that the Applicant could not satisfy the requirements of cl.100.221(1) of the Regulations.

Grounds for review

1. The application for review contains two grounds: 

   1.  The decision made by the Tribunal member is contrary to Natural Justice (sic).

   2.  The Tribunal has applied procedural fairness to the applicant’s particulars.[15]

   [15] Application of Gurmeet Kaur filed 14 February 2014, at p.3.

2. I have taken it that the Applicant intended ground two to say that the Tribunal has not applied procedural fairness. In written submissions provided by the Applicant,[16] the Applicant alleges that the Tribunal member failed to consider or assess the report provided by

   
   

   Mr Kleynhans and that the Tribunal member did not refer the evidence for further independent assessment.[17] 

   [16] Written submissions of Gurmeet Kaur filed 16 March 2015.

   [17] Ibid, p.3 at paras.16-17.

The First Respondent’s submissions

1. In both written[18] and oral submissions to the Court, the

   
   

   First Respondent has addressed these issues. The First Respondent has taken the Court through the requirements of the Regulations.

   
   

   The First Respondent has referred to the requirements of regs.1.23 and 1.24 of the Regulations and, in particular, to the fact that reg.1.24 requires a statutory declaration under reg.1.25 of the Regulations.

   
   

   In essence, that is a statutory declaration by the alleged victim.

   
   

   It would appear that the statutory declaration lodged by Mr Kleynhans might meet the requirements of reg.1.26 but it cannot meet the requirements of reg.1.25 of the Regulations. The First Respondent also submits that the provisions of reg.1.23(10) of the Regulations are not attracted unless the evidentiary requirements for reg.1.23 of the Regulations have been satisfied. That includes the requirement for a statutory declaration under reg.1.25 of the Regulations.

   [18] First Respondent’s Written Submissions filed 4 March 2015.

2. The First Respondent further submits that, with respect to the question of natural justice or procedural fairness, the Tribunal had met the requirements of Part 5, Division 5 of the Migration Act 1958 (Cth) (“the Act”) which is taken to be an exhaustive statement of the requirement of the natural justice hearing rule. The Applicant was given the opportunity to appear before the Tribunal and present evidence and arguments. She was on notice that, should she fail to do so, the Tribunal could consider the matter in her absence and make a decision without taking any further action. The Tribunal, in making the decision to do so, did not act in a way that was legally unreasonable.

Conclusions

1. The grounds of the application refer to the decision being contrary to natural justice and allege a failure of procedural fairness.

   
   

   The submissions of the Applicant also allege that the Tribunal failed to take into account the statutory declaration of Mr Kleynhans and failed to refer the evidence for a further independent assessment. For the purposes of these proceedings, the application, insofar as it relates

   
   

   to a failure of natural justice, is subject to the provisions in Part 5, Division 5 of the Act: that is, that the statutory provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule.

2. With respect to the invitation to attend a hearing, I am satisfied that the Tribunal invited the Applicant to a hearing. In doing so, it noted that it could not make a favourable decision on the material then before it. The correspondence also noted that, if the Applicant failed to appear, the Tribunal could determine the matter “without taking any further action to allow or enable [the Applicant] to appear”.[19] At the request of the Applicant, the hearing date was adjourned.

   [19] Court Book filed 17 June 2014, at p.138.

3. I am satisfied that:

   ·The Applicant was clearly on notice of the hearing;

   ·She had the capacity to attend and present evidence; and

   ·The Applicant was aware that a decision could be made by the Tribunal if she failed to appear. 

4. The Applicant did provide a report from a psychologist in the form of a statutory declaration. Under the provisions of regs.1.24 and 1.25 of the Regulations however, the Applicant was required to lodge a statutory declaration made by herself. She did not do this. The Applicant did not attend the hearing, nor did she seek any further adjournment.

5. The Tribunal determined to proceed on two bases:

   ·First, sufficient opportunity had been given to the Applicant to appear; and

   ·Second, the Applicant was on notice regarding the issues of concern. 

6. I accept that the Applicant, on the basis of the material before the Court, was given sufficient opportunity to appear. Further, I accept that she was on notice regarding the issues that were of concern. The Tribunal referred to the reasons for the delegate’s decision which are set out at pages 98 to 100 of the Court Book.[20] Those reasons clearly set out the delegate’s findings as to why the Applicant had not met the requirement of the Regulations.

   [20] Court Book filed 17 June 2014.

7. The Applicant clearly had a copy of the delegate’s decision. It is also evident that the Applicant had some understanding of what was required of her because she submitted the statutory declaration by

   
   

   Mr Kleynhans, a clinical psychologist whom she first visited in December 2012. On her own evidence, including the

   
   

   statutory declaration of Mr Kleynhans, the Applicant could not meet the other requirements of cl.100.221 of Sch.2 of the Regulations.

   
   

   She was no longer in a spousal relationship with her sponsor.

   
   

   There was no evidence that the sponsor had died and there was no evidence of any child to whom both she and her spouse had parenting obligations. 

8. The only relevant criteria could therefore be the criteria with respect to family violence. In considering that criteria, the Tribunal did refer to the statutory declaration of Mr Kleynhans but noted that no other evidence had been provided in support of the claim. The Tribunal noted that reg.1.24 required the Applicant to lodge a statutory declaration under reg.1.25 of the Regulations. As no such declaration had been provided, the Tribunal found that the requirements of reg.1.24 of the Regulations had not been satisfied. As those requirements had not been satisfied, the application did not attract the provisions of cl.100.221 of Sch.2 of the Regulations and there was no obligation on the Tribunal to refer the matter for any form of independent assessment.

9. It is a pity that the Applicant chose not to attend the interview with the delegate or to attend the Tribunal hearing. Had she done so, she may have been given the opportunity to rectify the deficiencies in her application and, in particular, her failure to provide a

   
   

   statutory declaration which met the requirement of reg.1.25 of the Regulations. In the absence of such evidence, the Tribunal was obliged to affirm the decision of the delegate.

10. For these reasons, the application in this matter must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  8 April 2015