KAUR v Minister for Immigration

[2017] FCCA 166

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 166

Catchwords:
MIGRATION – Administrative review– spousal visa – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: SARBJEET KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 659 of 2016

Judgment of: Judge Vasta

Hearing date: 30 January 2017

Date of Last Submission: 30 January 2017

Delivered at: Brisbane

Delivered on: 30 January 2017

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the Application be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. That the Applicant pay the First Respondent's costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 659 of 2016

SARBJEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 20 June 2016, the Applicant applied to this Court for an order for judicial review of a decision made by the Administrative Appeals Tribunal. That decision was given on 19 June 2016, which affirmed an earlier decision of the delegate to refuse a spousal visa to the Applicant.  The matter was before me on 7 October 2016, where I made certain orders.  I then made other orders in Chambers about five days later as to the conduct of this application.  I did on that day adjourn the hearing until 2.15pm on 30 January 2017.

2. Last week, that time was moved to midday today.  The Applicant has not appeared and has not complied with any of the other orders that I had made as to the provision of written submissions.  Notwithstanding that it is now 12.25pm and the Applicant has not shown, it is a matter that I feel I ought deal with on the merits. 

3. The Applicant sought a spousal visa and the Tribunal had to be convinced that there was a genuine spousal relationship between her and her sponsor, a person by the name of Hudson. 

4. The Tribunal went through the evidence that was before it and noted a number of statutory declarations from people who said that they knew the couple and described their relationship.  The Tribunal was of the view on the evidence that the Applicant and her sponsor were validly married. 

5. The Tribunal then looked at the financial aspects of the relationship and, having gone through that, came to the conclusion that they were not satisfied that the sponsor was meeting most of the Applicant’s living expenses and also found that there were no joint assets or liabilities together.

6. The Tribunal looked at the nature of the household and how the two met and so on because the Applicant had said that the two of them had met when the sponsor came to visit someone in the guesthouse that she was living in. 

7. The claim was that they were living together, but on the evidence before the Tribunal, the Tribunal accepted that the Applicant and sponsor live in the same guesthouse, but the Tribunal was not satisfied that the Applicant and sponsor share the same room. Such a finding on the evidence was certainly open to it.

8. The Tribunal looked at the social aspects of the relationship and came to the conclusion that they accepted that the Applicant and sponsor went through the marriage ceremony and are married and accepted that the Applicant and sponsor are known to each other and socialise together from time to time. 

9. The Tribunal accepted that there is evidence from three people that the Applicant and sponsor represented themselves to others as being a couple.  The Tribunal then noted, however, there is minimal information about the nature of the parties’ relationship or the basis on which the Applicant and the sponsor plan and undertake joint social activities.

10. The Tribunal looked at the nature of the commitment to each other of the Applicant and the sponsor.  The Tribunal ended up saying this at paragraph 37:

    37. Weighing up all the evidence before the it, the Tribunal is unable to be satisfied as to the applicant’s claim to be in a spouse relationship with the sponsor and, as it is not satisfied that the requirements of s.5F were met at the time of application or at the time of the decision, the Tribunal finds that the applicant does not meet the cl.820.211 or cl.820.221

11. Now, such a finding on the evidence that the Tribunal talks about was open.  As far as the Applicant is concerned, the Applicant raises five grounds: 

    “1. That the First and the Second Respondents ignored the relevant material/information provided by the applicant, in relation to her applications for subclass 820/801.

12. On my reading of the material, it is not that the Tribunal ignored the material or information.  It is that the Tribunal came to a particular view as to that material and just did not accept that material.  Therefore, I do not see that there is anything in that ground.

13. The second ground is

    2. That the Second Respondents failed to apply the relevant law and or misconstrued the applicable law in relation to her application.

14. Nothing more has been said about that particular ground and, on my reading, I cannot see how such a ground could be made out.  The Tribunal identified the law and went through the facts and came to a conclusion.  So I do not find that there was any substance in ground 2.

15. Ground Three states:

    3. That the Second Respondent denied the applicant procedural fairness.

16. Again, that ground has not been further expanded upon.  On my reading of the decision, I cannot see where there has been any procedural unfairness given to the Applicant.  So I do not find that there is any substance in that ground.

17. Ground Four is:

    4. The Second Respondent failed to consider the entirety of the applicant’s claims.

18. With respect to this ground, it seems to be an application for an impermissible merits test and, again, there is nothing further that has been identified to this Court as to what the entirety of the Applicant’s claim was that was not considered.  So, therefore, I do not find that there is any substance in that ground.

19. Finally Ground Five is :

    5. That the Second Respondent did not ask the Applicant right questions and/or asked wrong questions in relation to the applicant’s application for 820/801 visa”

20. I cannot see what were the right questions or wrong questions and how there has been any identification on those, and there just does not seem to be any substance to that ground as well. 

21. Therefore, on my view, there is no substance in any of these grounds.  I, therefore dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 February 2017