KAUR v Minister for Immigration and
[2020] FCCA 1081
•7 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION AND & ANOR | [2020] FCCA 1081 |
| Catchwords: MIGRATION – Application for judicial review – partner visa – whether there were compelling reasons for not applying criteria requiring off-shore application – where sponsoring spouse died after application made – where death of spouse does not preclude visa being granted on pending application, but does preclude any further spouse visa application – where Tribunal failed to have regard to relevant circumstances – application granted – writs issued. |
| Legislation: Migration Act 1958 (Cth). Migration Regulations 1994 (Cth), cl.820. |
| Cases cited: Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 |
| Applicant: | SARBJIT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2534 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 2 March 2020 |
| Date of Last Submission: | 2 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 3 November 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2534 of 2016
| SARBJIT KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Overview
In this matter the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 November 2016. In that decision, the Tribunal refused the applicant’s application for a Partner (Temporary) (Class UK) visa.
The spouse visa requirements are set out in clause 820 of the Migration Regulations 1994. The relevant clause for the purpose of this case requires that a spouse visa application, if made from within Australia, must be made within 28 days of the expiration of an existing visa. This is required to comply with criterion 3001. The applicant failed to meet this requirement.
The issue in this matter when it was before the Tribunal was whether there were compelling circumstances, within the meaning of clause 820.11(2)(d) of the Regulations, for not applying criteria 3001.
Background
The applicant first came to Australia on 4 September 2008 (on the Applicant’s submissions and in 2009 on the first respondent’s submissions) on a vocational education and training (subclass 572) visa, which ceased on 12 November 2010. The applicant was granted another visa of the same subclass, which ceased on 15 March 2012. A fortnight before the expiration of this visa, the applicant had sought a protection visa. The protection visa application was refused in May of 2012. The applicant then sought a review of that decision with the Refugee Review Tribunal (as it then was), who affirmed the decision in August 2012. In September 2012, the applicant lodged an application for ministerial intervention, which was refused by 11 December 2012.
Whilst the applicant had a brief period without a visa between 27 September and 11 October 2012 it appears that she had some form of bridging visa until shortly after the ministerial intervention matter was determined. However, she was without a visa from 19 January 2013 to 4 July 2014.
On 25 June 2014, the applicant applied for a spouse visa with her spouse, Mr H. The delegate refused the applicant’s application on the basis that she had not established ‘compelling reasons’ for not complying with the requirement to apply for the visa within 28 days of holding a previous visa.
The delegate’s decision recounts the history of the relationship and has regard to the period of time that the applicant was unlawfully in Australia and her failure to depart the country despite being granted a Bridging E visa on 10 December 2012 for that purpose: see Court Book pp.103 to 109. The delegate’s decision was made on 17 December 2014.
Sadly, the applicant’s sponsor passed away as a result of a motor vehicle accident on 27 December 2014: see the copy of the death certificate at Court Book p.145. The applicant may nonetheless pursue a spouse visa, as there are provisions that enable a person to continue to obtain a spouse visa if the application has been brought before the death of their spouse.
On 6 January 2015 the applicant sought review of the delegate’s decision by the Migration Review Tribunal. That Tribunal refused her application on 11 November 2015. This decision was was the subject of judicial review proceedings resulting in a consent order quashing the decision of the Tribunal and remitting the matter to be determined according to law (applying the Full Court decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, which had been handed down after the decision of the Tribunal member). The matter was remitted to the Tribunal on 26 April 2016.
The Tribunal received further submissions from the applicant’s migration agent and made another determination on 3 November 2016. It is this latter determination by the Tribunal that is the subject of the present judicial review proceedings.
Tribunal Considerations
The Tribunal member briefly recounted the history of the matter and identified the relevant criteria that required the application to be made within 28 days of holding a substantive visa. The Tribunal then turned to the need for the applicant to establish ‘compelling reasons’: see paragraph 15 of the decision. At paragraph 19, the Tribunal identified that the applicant had provided a marriage certificate showing she was married at Box Hill (although she and her husband appear to have lived at Mildura). The applicant outlined that she had known her husband for one year before they married but that she did not live with him before the marriage.
The applicant also provided a change of name certificate showing that her husband had changed his surname 26 days prior to the marriage, on 1 November 2013, but she was not able to explain why he changed his name. She further provided a Centrelink statement of her husband of May 2014, in which it is recorded that he was not partnered. The Tribunal member expressly identified that a death certificate had been provided showing that the applicant’s husband had died in a motor vehicle accident on 27 December 2014: see paragraph 20 of the decision.
Ultimately, the Tribunal was not satisfied that there were compelling reasons for failing to comply with the criteria requiring the application to be made within 28 days of a substantive visa, and therefore the applicant did not meet the criteria of clause 820.211(2)(d)(ii): see paragraph 33 of the Tribunal decision.
Judicial Review
Ground One
In the Amended Application filed on 8 February 2019 the applicant sets out the following first ground:
1. The Tribunal failed to have regard to a compelling reason to waive the schedule 3 criteria, namely that the applicant could not possibly satisfy the criteria for a new partner visa application made offshore due to the intervening death of her husband.
When considering whether or not there were ‘compelling reasons’, the Tribunal does not appear to have identified that if the applicant were to recommence the visa application offshore she could not obtain a spouse visa, as her spouse is now deceased. The reasons given by the Tribunal appear to indicate that the matter was considered as at the time that her husband was alive, rather than having regard to the events since then, for example, paragraphs 20, 26 and 27 of the decision provide as follows:
20. The applicant provided a death certificate which records her husband died in a motor vehicle accident on 27 December 2014. The applicant provided a letter addressed to her from a Legal Service which refers to assistance provided to stop harassment to the applicant from friends of her husband. The letter confirms the applicant's husband's friends would collect the husband's personal belongings from the house, and return the keys to the owners. The tribunal asked the applicant why her husband's belongings and personal property were being collected by friends and not his wife. The applicant stated she was frightened of the friends. She stated that she was not home when her husband died, and that the family and friends had not let her in, or let her see her husband after the accident, or attend the funeral. She stated that she had her personal papers in the car, and was not able to retrieve any property from the house. She stated the house was later burnt down.
…
26. The tribunal has considered the submissions of the representative. The tribunal is not satisfied that the evidence before it is that the applicant or the sponsor would suffer hardship if the applicant had to return to India to lodge the application offshore. The tribunal has considered the submission dated 28 October 2014 which states that the applicant is financially dependent on the sponsor for her daily needs. The tribunal considers this is inconsistent with the sponsor's Centrelink statement which records him as unpartnered, as it records the sponsor as having a limited income and not declaring himself as supporting the applicant. The tribunal has considered the submission dated 28 October 2014 which states that leaving the applicant alone would "be fatal for her" because she "cannot handle or look after herself'. The tribunal can consider all the circumstances since the time of application, and is satisfied that even though the sponsor died, the applicant has been able to cope satisfactorily. The tribunal is not satisfied that the applicant's claimed inability to cope without the sponsor is a compelling reason for not applying the Schedule 3 criteria.
27. The tribunal has considered the subsequent submissions dated 29 October 2015 (which describes scenarios in which it would be impossible for the applicant to depart Australia and lodge the application offshore) and 24 October 2016. The representative submits both the applicant and the sponsor would suffer psychological, emotional and financial hardship. The tribunal has considered these submissions, and the tribunal is not satisfied that there is sufficient evidence that amount to compelling reasons that if the applicant returned to India to lodge the application either she or the sponsor would suffer psychological, emotional or financial hardship.
It appears clear that the Tribunal did not have regard to the practical reality that the applicant could not apply for a spouse visa once this visa application was dismissed, as the death of her spouse after this visa application was made, meant she was no longer in a position to make a further spouse visa application offshore. In this sense, the Tribunal failed to have regard to a matter that must bear heavily upon the question of whether or not there are ‘compelling reasons’ to allow the visa application to be made at the time that the applicant made the application. When reading cl.820.211 the heading at cl.820.21 sets out ‘Criteria to be satisfied at the time of application’. Clearly satisfaction of criteria 3001 must be at the time of application. However, there is nothing that indicates that the breadth of circumstances relevant to ‘compelling reasons’ must be confined to the time of application: see Waensila. Whilst it may be less common where events occurring after the time of application for a spouse visa are relevant for the operation of the ‘compelling reasons’ test, it remains open to consider intervening events that bear on the circumstances of the parties.
This is not to say that this circumstance, as weighty as it is, necessarily overshadows the other circumstances that the Tribunal would have to weigh in the balance.
I am satisfied that ground 1 is made out.
Ground Two
Ground two of the Amended Application is set out in the following terms:
2. The decision of the Tribunal was based on an irrational finding, in that it repeatedly purported to consider and make findings about the ongoing effect and hardship on the sponsor if the applicant were required to return to India to apply for a visa offshore, notwithstanding that the Tribunal accepted that the sponsor was dead.
Counsel for the Minister argued that this point was not clearly put by the applicant or her adviser in their submissions and therefore it was not necessary for the Tribunal to consider it. I have considerable sympathy for the Tribunal member, as this appears to have been a central point in the case, which many would consider to be one of the best points for the applicant, however the mention of this point is cryptic in the submissions the adviser made in October 2016 where, on the second page, the death is simply set out without more explanation (at Court Book p. 193) and on the third page (at Court Book p.194), the adviser says:
The visa applicant is still eligible to be granted a spouse visa in circumstances where the sponsoring spouse dies. At least it gives to the applicant an opportunity to still be granted the permanent residency visa sought.
These two sentences are in the middle of a paragraph. Whilst it is only a brief reference, it appears to me that it is apparent from the facts before the Tribunal, having regard to the legal requirements, that this was a significant factor to be borne in mind and was sufficiently articulated by the facts and material before the Tribunal in the context of this case.
Even if I am in error with respect to ground 1, I am satisfied that the failure to deal with the consequence of abandoning this application to pursue a second application was not dealt with by the Tribunal in such a way as to make clear that they had regard to it, and that in those circumstances, if ground 1 were not to have been made out, ground 2 would have been made out.
Ground Three
I then turn to the third ground the applicant raises as follows:
3. The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims to require protection as a compelling reason to waive the schedule 3 criteria.
Particulars
(a) The applicant claimed that she faced harm from her family and that her family had threatened to kill her if she returned to India because she had entered two marriages without her parents’ consent.
(b) The claims of the applicant engaged Australia’s non-refoulement obligations under international law.
The applicant complains that the Tribunal failed to have regard to her claims to fear harm if she were to return to India, as a result of concerns about actions of her family. The potential of harm to the applicant, even if it does not rise to the level sufficient to found a protection visa application, would nonetheless be a relevant circumstance as a matter of basic principle. That is, in any discretion that might arise under the Migration Act 1958 (Cth), one of the relevant factors must necessarily be the harm that a person may face, as it would be irrational not to take into account the possibility of harm when exercising a discretion. This manifests itself in decisions concerning the ability of a person who is seeking a protection visa to relocate, where the possible harm or difficulty of relocating must be considered, even if it does not rise to the level of independently showing a basis for a protection visa and, similarly, with respect to other visa types: see MZYPZ v Minister for immigration and Citizenship [2012] FCA 478 at [27].
In this case, however, the submissions made by the applicant’s advisers were absolutely minimalist. At Court Book p.158, the adviser set out
Fourthly, [t]he visa applicant cannot return to India being unsafe from the hands of her family, due to arranging the marriage of against their wishes and migrating to Australia. She even lodged an onshore protection visa to assert her claim for protection in Australia. A news item was also got published in Indian Express a daily news paper to dispossess her by her father.
[…]
The sponsor expressed his inability to depart Australia with visa applicant due to his serious financial restrains and danger to the life of visa applicant from the hands of her family, with their rigid and narrow thinking.
There are no facts or circumstances set out therein to demonstrate any factual basis for the fear of harm, nor precisely how it is said that the harm may manifest itself. The Tribunal addressed this with the applicant, (at paragraph 18 of the decision), saying:
18. The tribunal asked the applicant if there were any safety issues or other factors concerning why she could not return to India to lodge the application. The applicant stated that her family did not support her as she had made two marriages "by my own will". The tribunal stated that if she thought of anything that she wanted to add to her evidence after the hearing, that she had forgotten to mention in the hearing, it would allow a short period of a few days for her to provide additional information by writing. The applicant's representative indicated that he would provide additional information if the applicant telephoned him with additional information to tell the tribunal.
The post-hearing submissions, which appear at Court Book p.192, make no mention of any basis for fearing harm.
Given the exceedingly limited material before the Tribunal, which, in substance, amounted only to a bare allegation, and that the Tribunal has clearly provided the applicant an opportunity to provide material both at the hearing and in post-hearing submissions, I am not persuaded that the brief reasons given by the Tribunal are insufficient. The Tribunal said
28. Based on the applicant's oral evidence, after considering the representative's submissions, the tribunal is not satisfied that the applicant fears for her safety if she returns to India. The tribunal accepts the applicant has concerns that her family will not provide her with financial assistance if she returns to India to lodge the application offshore. The tribunal is not satisfied that the applicant's concerns about her financial security if she is required to return to India to lodge the application amount to a compelling reason for not applying the Schedule 3 criteria.
In the circumstances, I am not persuaded that the applicant has made out ground 3.
The discretion not to grant relief.
When the matter was argued before me, it was put on the basis that this application is the only opportunity that the applicant has to obtain a partner visa and that a subsequent application would be futile. The death of the applicant’s husband does not prevent the visa from being granted: see cl.820.221(2).
The Tribunal, however, sets out that
34. As there is no evidence before the tribunal that the applicant is the holder of Subclass 771 visa she does not meet the requirement of cl.820.221(1). As there is no evidence before the tribunal that the applicant is or has been the holder of a Subclass 300 Prospective Marriage visa she does not meet the alternative requirements of cl.820 .211 (5)(b), (6)(a), (7)(a), (8)(a) or (9)(b ).
The relevant clauses in the Regulations are as follows:
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
…
820.22—Criteria to be satisfied at time of decision
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
Conclusion
The central question in this case is whether the applicant can meet cl.820.221(2) which turns on the Tribunal’s assessment of whether there are ‘compelling reasons’ for not applying criteria 3001 in cl.820.221(2)(d). The fact that the applicant does not hold a Subclass 771 visa is a necessary element of the clause. I am persuaded that the applicant could be granted the visa if she can persuade the Tribunal of compelling reasons for not applying criteria 3001.
I therefore allow the application, quash the decision and remit the matter to be determined again according to law.
The parties agreed that costs should follow the event at the scale amount of $7,467.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 7 May 2020
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