KAUR v Minister for Immigration

[2019] FCCA 1642

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1642

Catchwords:
MIGRATION – Whether there are compelling reasons for the Tribunal to waive Schedule 3 requirements of the Migration Regulations 1994 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.476(2)(a), 476(4).

Migration Regulations 1994 (Cth), schs.2 cl 820.211(2)(d)(ii), 3 cl 3001.

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

Applicant: HARPREET KAUR

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2520 of 2016

Judgment of: Judge McNab

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Melbourne

Delivered on: 2 July 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 21 November 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5000.

3. The title of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2520 of 2016

HARPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 21 November 2016 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 1 November 2016.[1] The applicant had sought to review the Tribunal’s decision to affirm a decision of the delegate (‘the Delegate’) of the First Respondent (‘the Minister’) not to grant her a Partner (Temporary) (Class UK) visa (‘the visa’).[2]

   [1] Court book page 134.

   [2] Court book page 134.

Grounds of Review

1. The applicant’s grounds of application set out in her application (and quoted as is), are:

   1. The determination of application has resulted in unfairness to me.

   2. The member AAT and delegate for the Minister have made findings in the application which appears irrational or incomprehensive.

   3. The merits of application [should] properly be taken into consideration to determine a legal issue of some importance

Background

1. The applicant, a citizen of India, arrived in Australia on 2 July 2008[3] as a dependent on her former husband’s student subclass 572 visa. The applicant and her husband divorced during 2008.[4]

   [3] Tribunal’s decision record, 1 November 2016 [11].

   [4] Tribunal’s decision record, 1 November 2016 [19].

2. The applicant remained in Australia on her student visa which ceased on 5 May 2010.[5] The applicant was subsequently granted a further subclass 572 visa which ceased on 27 July 2011.[6]

   [5] Tribunal’s decision record, 1 November 2016 [11].

   [6] Tribunal’s decision record, 1 November 2016 [11]-[12].

3. On 13 March 2014 the applicant applied for the visa on the basis of her relationship with Mr Nick Italiano (‘the sponsor’). [7] On 19 September 2014[8] the Delegate refused to grant the applicant the visa as she did not satisfy clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[9]

   [7] Tribunal’s decision record, 1 November 2016 [2].

   [8] Court book page 84.

   [9] Tribunal’s decision record, 1 November 2016 [3].

Proceedings before the Tribunal

1. On 7 October 2014 the applicant applied to the Tribunal for review of the Delegate’s decision.[10] On 11 November 2015[11] the Tribunal affirmed the Delegate’s decision.

   [10] Court book page 102-3.

   [11] Court book page 108.

2. The Tribunal’s decision of 11 November 2015[12] was appealed to the Federal Circuit Court. On 2 June 2016[13] the Federal Circuit Court made orders by consent remitting the matter to the Tribunal[14] on the basis of the decision of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (‘Waensila’).

   [12] Court book page 108.

   [13] Court book page 115.

   [14] Court book page 115.

3. As part of the remittal process, on 29 September 2016, the Tribunal sent the applicant a letter inviting her to attend a hearing.[15] The letter provided, relevantly:

   One of the issues we will be considering at the hearing is whether you have complied with the timeframe requirements in Schedule 3 at the time you lodged your visa application and, if not, whether there are any compelling reasons for not applying these requirements. Circumstances which constitute compelling reasons for not applying these requirements can arise at any time, including after the visa application was made. We request that if you have any additional relevant material you wish to rely upon at the hearing you should provide it no later than 18 October 2016.[16]

   [15] Court book page 122-4.

   [16] Court book page 124.

4. The form of words used by the Tribunal was consistent with Waensila, as it set out what circumstances may be taken into account when considering compelling reasons. The applicant did not provide any additional material to the Tribunal.

5. On 25 October 2016[17] the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

   [17] Court book page 129.

The Tribunal’s Decision

1. The Tribunal, at [9] of the decision record, made reference to the relevant legislative framework, noting:

   It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

   The Tribunal noted that the relevant date for the purposes of the review was 27 July 2011.[18] As the application was not made within 28 days of 27 July 2011, the applicant did not satisfy criterion 3001 of Schedule 3 of the Regulations.[19]

   [18] Tribunal’s decision record, 1 November 2016 [12].

   [19] Tribunal’s decision record, 1 November 2016 [12].

2. At [13] and [14] of the decision record the Tribunal made reference to the relevant authorities in relation to what constitutes compelling reasons for the purposes of applying the criteria or not.

3. The Tribunal referred to the submissions dated 5 November 2015[20] that were made by the applicant and the applicant’s agent. The argument as put by the agent (and quoted as-is), at [17] of the decision record, was:

   There will be a significant impact on the visa applicant and the sponsor emotionally. Moreover, they are accustom to live together and feel depressed & socially isolated. The sponsor and visa applicant will suffer significant hardships. [The sponsor] never expected that his partner’s visa would be refused and she had to depart Australia when he needed her most.

   Further, the visa applicant and sponsor are not financially strong to provide any financial support and assistance during the period of a stay in India for waiting till finalisation of visa application which generally takes more than 12 months.

   [20] Tribunal’s decision record, 1 November 2016 [17].

4. The submission of the applicant’s agent described the strong attachment between the applicant and the sponsor. The agent also described the difficulties of the sponsor migrating to India for a period of more than 12 months. At [19] of the decision record the Tribunal referred to the applicant’s evidence that she did not wish to go offshore because she was very attached to her partner and could not live without him. She complained that:

   she did not know how many months she would have to wait offshore. She stated that she had a nice man now. She had come to Australia with her previous husband, but they divorced in 2008.[21]

   [21] Tribunal’s decision record, 1 November 2016 [19].

5. The Tribunal also referred to submissions made by the applicant as to why it might be difficult for her to return to India, including that her family would attempt to find her an Indian boy to marry.[22] The applicant’s sponsor also gave evidence that he feared that the relationship may not survive their separation and that the sponsor did not believe in long-distance relationships.[23]

   [22] Tribunal’s decision record, 1 November 2016 [19].

   [23] Tribunal’s decision record, 1 November 2016 [33].

6. At [23] of the decision record the Tribunal accepted that the parties were in a long-standing relationship and that the length of the relationship was a consideration for the Tribunal. However, the Tribunal was not satisfied that this was a compelling reason that justified waiving the Schedule 3 criteria. The Tribunal did not believe the setting-up of a household together, their unique bond and their relationship of over three years were sufficiently compelling reasons to waive the Schedule 3 criteria.

7. The Tribunal noted that it was common for persons and couples to be separated while their subclass 309 visa is being processed.[24] The Tribunal then concluded that ‘the Tribunal is not persuaded that any separation would be unreasonable or cause the parties any hardship over and above that being experienced by other couples in their circumstances’.[25] As stated at [25] of the decision record:

   The Tribunal does not find that the strength of the relationship in terms of the emotional support the parties might provide one another and the uniqueness of their bond, propels the parties’ circumstances into the category of compelling reasons for waiving the schedule 3 criteria.

   [24] Tribunal’s decision record, 1 November 2016 [25].

   [25] Tribunal’s decision record, 1 November 2016 [25].

8. The Tribunal responded to several of the applicant’s claims at [26] to [31] of the decision record:

   a)the Tribunal was willing to accept that her brother had been in a car crash and that her family were emotionally vulnerable and under some financial stress;

   b)the Tribunal was not convinced that her family’s financial stress necessitated her staying in Australia, noting that she presented well at the interview and that because of her strong English skills and international experience she should be able to subsist and still support her family while in India;

   c)the Tribunal noted that, even accepting her parents have traditional views and would attempt to have her married to an Indian man, she had lived independently of her parents in Australia and could continue to do so in India.

9. The Tribunal found that while there may be some disruption to the applicant’s life if she were to return to India, this did not constitute a compelling reason for waiving the Schedule 3 criteria.[26]

   [26] Tribunal’s decision record, 1 November 2016 [30].

10. Similarly the Tribunal considered the sponsor’s circumstances and found that the isolation and the emotional effects of the applicant’s temporary departure would not give rise to compelling reasons sufficient to waive the Schedule 3 criteria.[27] The sponsor receives further consideration at [32] to [35] of the decision record, with similar findings being made.

    [27] Tribunal’s decision record, 1 November 2016 [31]

11. The Tribunal concludes at [36] of the decision record, that:

    The Tribunal has heard the parties’ propositions that they want to continue to stay together and that the applicant going offshore will represent a challenge to their relationship. It has also taken into account that the applicant claims she is unable to live without the sponsor and that her family members’ circumstances at the moment are difficult. The Tribunal has also had consideration to the applicant’s claims that her family’s financial circumstances in India were adversely affected by illness. However, the Tribunal has not been able to discern in these circumstances matters that are so powerful as to lead it to make a positive finding that the regulation should be waived.

Consideration

1. The applicant appeared alone before the Court and represented herself. She told the Court that she did not wish to go back to India. She wants to stay in Australia, and that she had been here since 2008 and has not returned to India during that time. She feared that her separation will cause a breakdown in her relationship with the sponsor, and she stated that she does not want another man in her life.

2. The applicant was clearly upset at the prospect of separation. However, the Court did try to explain that the Court could was not re-examining the merits of her case, and the purpose of the hearing was to identify whether there was a jurisdictional error in the decision of the Tribunal.

Ground 1 – whether the Tribunal was unfair to the applicant

1. There is nothing in the material that has been provided to the Court that would indicate that the Tribunal has acted unfairly towards the applicant or the sponsor in the course of the hearing or in the way that the evidence has been considered. The Tribunal may have made a decision which the applicant is not satisfied with, but there is no evidence of unfairness in the way that the Tribunal dealt with the applicant and her claims before it.

Ground 2 – whether the Minister and Delegate’s decisions were irrational or incomprehensive

1. To the extent that the applicant seeks to challenge the decision of the Delegate, the Court has no jurisdiction to review that decision pursuant to section 476(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) because it is a primary decision as defined by section 476(4) of the Act.

2. The applicant’s appeal against the Tribunal on the grounds of irrationality or incomprehensibility or unreasonableness are also rejected. There is no basis for asserting that the decision is legally unreasonable: the Tribunal made its decision based on the material before it and gave logical and comprehensible reasons for its finding. It is not a decision where no rational or logical decision maker could arrive on the same evidence: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130].[28]

   [28] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] (Crennan and Bell JJ).

Ground 3 – Merits Review

1. By this ground the applicant is effectively asking the Court to engage in merits review. This is impermissible: see, for instance, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.[29]

   [29] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Conclusion

1. For these reasons, the application filed 21 November 2016 must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 2 July 2019