KAUR v Minister for Immigration (No. 2)

[2016] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR (No. 2) [2016] FCCA 1779

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application to set aside default judgment – Partner (Residence) (Class BS) visa – whether there is an adequate explanation for non-attendance – whether there is an arguable case of jurisdictional error – whether the Tribunal misapplied the relevant law – whether the Tribunal failed to consider an integer of the applicant’s claims – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 476

Federal Circuit Court Rules 2001, r.13.03C(1)(c)
Migration Regulations 1994, reg.1.15A(3), Schedule 2, cls.802.221(2)(c), 801.226

Applicant: GURPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2019 of 2015

Judgment of: Judge Street

Hearing date: 14 July 2016

Date of Last Submission: 14 July 2016

Delivered at: Sydney

Delivered on: 14 July 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitor

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $1050.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2019 of 2015

GURPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside a default judgment entered on 8 April 2016 for want of appearance of the applicant pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The substantive application seeks a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 26 June 2015 not to grant the applicant a Partner (Residence) (Class BS) visa.

2. The applicant is a citizen of India.  The applicant came to Australia in August 2007 on a Student (Temporary) (Class TU) visa.  In August 2010 the applicant married her sponsor.  The applicant’s substantive subclass 572 student visa expired on 5 February 2011.  On 4 February 2011 the applicant lodged a partner visa (subclass) A20 application.  On 3 April 2014 the delegate refused a visa application in summary on grounds of application of the public interest criteria.

3. The delegate found that the applicant had fabricated a letter from Colin Parrot and Beverly Garvan. It was on the basis that the applicant did not satisfy the public interest criteria 4020 that the delegate found that the applicant did not satisfy cl.801.226 of Schedule 2 of the Migration Regulations 1994 and refused to grant a visa.  On 17 April 2014 the applicant applied for review before the Tribunal.  On 26 February 2015 the applicant was sent a letter inviting the applicant to appear before the Tribunal on 10 April 2015.

4. The applicant appeared on that date to give evidence and present arguments. Oral evidence was also taken from the visa applicant’s sister and brother, and was conducted with the assistance of an interpreter. The applicant was represented by her registered migration agent.  The Tribunal identified the evidence from the applicant and, in particular, that the relationship with the sponsor came to an end and that she commenced to live with her brother.

5. The applicant gave evidence to the Tribunal that the sponsor had cheated on her and gave evidence as to the effect that her life would have been in danger if she had to go back to India.  The Tribunal referred to asking the applicant if she knew why the relationship had broken down and the applicant said that it was because the sponsor was unkind to her and the visa applicant was always upset.

6. The Tribunal identified that the relevant issue was whether the applicant continued to be in a genuine spousal relationship in accordance with cl.802.221(2)(c) that required at the time of the decision the applicant to be the spouse of the sponsor and his partner.  The Tribunal found that the visa applicant had said that she ended the relationship in June 2013 when she found evidence that the sponsor had another partner that she had not been aware of.

7. The visa applicant said that she had not lived with the sponsor since then and had gone to live with her brother and that she now wants a divorce. The Tribunal made reference to the requirements of the meaning of spouse under s.5F of the Migration Act 1958, and, in particular, the criteria under s.5F(2)(a) to (d), as well as the requirements under reg.1.15A(3) of the Migration Regulations 1994 .

8. The Tribunal identified that the applicant had a valid marriage in accordance with s.5F(2)(a). The Tribunal found that there was no evidence before it regarding the financial and social aspects of the relationship, the nature of any household or any evidence concerning the nature of the persons’ commitment to each other at the time of the decision.

9. The Tribunal noted the sponsor did not attend the Tribunal hearing and no evidence was presented to demonstrate that the visa applicant continues to be the spouse of the sponsor. It was in those circumstances that the Tribunal found that the visa applicant did not meet the criteria for the grant of a Partner Residence (Class BS) visa. The Tribunal was not satisfied at the time of the decision that the parties were in a spousal relationship and, accordingly, found the applicant did not meet the requirements for cl.801.221(2)(c) of the Migration Regulations 1994. It was for those reasons that the Tribunal affirmed the decision of the delegate. 

10. The applicant had adduced evidence seeking to explain that she never received the notification of the callover date before the Court that was sent to her residential address.  The applicant accepts that the letter was sent to a residential address, that she was at that residential address, but says that she never received the letter.

11. The applicant was not the subject of any cross-examination and the Court accepts the applicant’s explanation that she did not receive notification of the callover. In determining, however, whether the default order should be set aside, the Court must be satisfied that there is some utility in doing so.

12. At the commencement of the hearing the Court explained to the applicant that the Court had to be satisfied that there was a satisfactory explanation for the failure to appear as well as a sufficiently arguable case to warrant the setting aside of the default order. The Court explained that a sufficiently arguable case required reasonable argument that the Tribunal’s decision was affected by relevant legal error.

13. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness.  The Court explained that this, in summary, meant that the Court was deciding whether the Tribunal’s decision was the subject of a reasonable argument that it was unlawful or unfair.

14. The Court explained to the applicant that if satisfied that there was a reasonable argument that the decision was affected by legal error and there was a satisfactory explanation for the delay the Court would set aside the default order.

15. The Court explained that if it was not satisfied that there was a satisfactory explanation for the delay and that there was a sufficiently arguable case the Court would dismiss the application.  The applicant confirmed that she understood what had been said by the Court.

16. The Court explained that it would have identified the evidence and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent, then hear submissions from the applicant in reply. The applicant confirmed that she understood what had been said. 

17. The grounds in the application are as follows:

    1. The tribunal has fell into jurisdictional error while considering Cl 801.221

    2. The tribunal has did not consider the element of family violence elements during presented during the hearing

    3. The tribunal failed to request for any further information about family violence

18. From the bar table the applicant sought to explain the unsatisfactory relationship with the sponsor and his parents and sought to take issue with the adverse findings by the Tribunal.  The solicitor for the first respondent submitted that ground 1 failed to identify any jurisdictional error.  The solicitor for the first respondent said that when one went to the decision of the Tribunal, the Tribunal had correctly identified the relevant considerations in relation to cl.801.221 which relevantly provides as follows:

    801.22--Criteria to be satisfied at time of decision

    801.221 

    …

    (2)  An applicant meets the requirements of this subclause if:

    (a)  the applicant is the holder of a Subclass 820 visa; and

    (b)  the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

    (i)  the sponsoring partner; or

    (ii)  the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

    (c)  the applicant is the spouse or de facto partner of the sponsoring partner; and

    (d)  subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

19. The solicitor for the first respondent said that the Tribunal correctly identified the requirements of s.5F which relevantly provides as follows:

    (1)  For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

    (2)   For the purposes of subsection (1), persons are in a married relationship if:

    (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b)  they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (c)  the relationship between them is genuine and continuing; and

    (d)  they:

    (i)  live together; or

    (ii)  do not live separately and apart on a permanent basis.

    (3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

    Note:         Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

20. The solicitor for the respondent submitted that the Tribunal correctly identified the requirements of reg.1.15A(3) which is as follows:

    (3)  The matters for subregulation (2) are:

    (a)  the financial aspects of the relationship, including:

    (i)  any joint ownership of real estate or other major assets; and

    (ii)  any joint liabilities; and

    (iii)  the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)  whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)  the basis of any sharing of day-to-day household expenses; and

    (b)  the nature of the household, including:

    (i)  any joint responsibility for the care and support of children; and

    (ii)  the living arrangements of the persons; and

    (iii)  any sharing of the responsibility for housework; and

    (c)  the social aspects of the relationship, including:

    (i)  whether the persons represent themselves to other people as being married to each other; and

    (ii)  the opinion of the persons' friends and acquaintances about the nature of the relationship; and

    (iii)  any basis on which the persons plan and undertake joint social activities; and

    (d)  the nature of the persons' commitment to each other, including:

    (i)  the duration of the relationship; and

    (ii)  the length of time during which the persons have lived together; and

    (iii)  the degree of companionship and emotional support that the persons draw from each other; and

    (iv)  whether the persons see the relationship as a long-term one.

21. The solicitor for the first respondent said that the Tribunal correctly turned to the considerations required under cl.801.221(2)(c) and that there is nothing on the face of the Tribunal’s decision to identify any arguable jurisdictional error in the application of cl.801.221. I accept those submissions.

22. The Tribunal’s reasons in relation to whether the parties were in a spousal relationship at the time of the decision was one in which the applicant had given evidence as to the cessation of the relationship in June 2013.  The hearing occurred in May 2015.  The adverse finding by the Tribunal was clearly open on the material before the Tribunal.  There is nothing to identify that the Tribunal engaged in any jurisdictional error in the application of cl.801.221. Ground 1 fails to identify any arguable case of jurisdictional error.

23. In relation to grounds 2 and 3, the solicitor for the first respondent identified the statement of the applicant provided in response to a s.359A letter inviting the applicant to comment on whether she had fabricated the letter from Colin Parrott and Beverly Garven. In response, a statutory declaration was provided by the applicant identifying the difficulty that the applicant had encountered and the difficulty she would face going back to India.

24. The solicitor for the first respondent submitted that there was no material before the Tribunal to engage in consideration of cl.801.221(6).  The solicitor for the first respondent submitted that the Tribunal had no obligation to deal with an issue that was not raised before it and that grounds 2 and 3 failed to identify any arguable jurisdictional error.  The solicitor for the first respondent said that the substance of what was said by the applicant from the bar table was inviting a merits review.  This Court does not have jurisdiction to engage in a merits review.

25. At the end of the submissions of the solicitor for the first respondent, the applicant was invited to reply and put further submissions as to her personal circumstances and maintained that she was mentally tortured and on one occasion slapped.  When asked by the Court whether there was anything adduced by the applicant from the bar table to raise the issue of family violence, the applicant said, “I should have done so.” 

26. The applicant’s response was consistent with not having raised any issue of family violence before the Tribunal.  I accept the submissions of the first respondent that grounds 2 and 3 fail to identify any arguable jurisdictional error.  I accept the submissions of the first respondent that there can be no error by the Tribunal in failing to address an issue that was not raised by the applicant before the Tribunal.

27. I am not satisfied that there would be any utility in setting aside the order made on 8 April 2016.  I take into account that it is a low threshold for the applicant to meet as to whether there is an arguable case. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, particularly at [24]-[25] and [59]-[60].

28. In the present case I am clearly satisfied that the application fails to identify any arguable jurisdictional error.  I am clearly satisfied that there is no arguable case that would warrant the setting aside of the order made on 8 April in the interests of the administration of justice. 

29. The setting aside of the order made on 8 April 2016 would be of no utility as the application fails to disclose any arguable jurisdictional error and nothing said by the applicant identifies any sufficiently arguable error to warrant the setting aside of the default order made on 8 April 2016.

30. The application in a case is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 July 2016