Khan v Minister for Immigration
[2005] FMCA 1970
•17 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1970 |
| MIGRATION – Subclass 820 spouse visa – no compelling reasons found – schedule 3 criteria 3001 does not apply – application refused – privative clause decision – notice of objection to competency upheld. |
| Migration Act 1958, ss.65, 351, 359A, 359(2), 417, 474, 477, 477(2), 477(1A) Migration Regulations 1994, Regulation 820.211(2)(d)(ii) Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Ho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1104 Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2 Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | RANA MUHAMMAD AKRAM KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2477 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 November 2005 |
| Date of Last Submission: | 8 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. T. Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2477 of 2005
| RANA MUHAMMAD AKRAM KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application filed in this Court on 5 September 2005 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of a delegate of the respondent Minister made on 28 September 2004 to refuse a Partner (Temporary)(Class UK) visa and a Partner (Residence)(Class BS) visa to the applicant.
The applicant is a national of Pakistan who arrived in Australia on
27 April 1991, and applied for the visas which are the subject of the current review on 29 June 2004. The applicant's application to the first respondent's Department, with a covering letter from his then adviser, is reproduced at Court Book (“CB”) 1 to CB 41. The application to the Tribunal for review of the decision of the first respondent’s delegate, with another covering letter from his then migration adviser, is at CB 58 to CB 61. The visas applied for by the applicant require a spousal or de facto relationship with a permanent resident of Australia. I note that the relevant legislation prescribes that the class UK visa is a temporary visa which can be granted immediately, and the class BS visa is a permanent residence visa which cannot be granted until two years have elapsed following the lodgement of the application, and the application of a test to see whether the relationship has continued two years after the visa application. The applicant claimed a relationship with an Australian citizen (see CB 8 and CB 9). The relevant subclass for a class UK visa in the applicant's circumstances was a spouse subclass visa identified as “subclass 820”. The applicant was required, amongst other things, to satisfy subclause 820.211(2)(d)(ii) of the Migration Regulations 1994 (“the Regulations”) which requires:“The applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
These requirements provide that the applicant must be the holder of a substantive visa. The Tribunal found, and this is not in dispute, that the applicant's last substantive visa ceased to be in effect on 11 May 1991 (CB 110.2). As the applicant did not apply for the visa (which is the subject of the review) until 29 June 2004, it was clear that the applicant could not satisfy this necessary criterion for the grant of the visa. The issue before the Tribunal therefore, was whether the applicant was able to satisfy the Tribunal that there were compelling reasons for not applying the relevant Schedule 3 criteria (CB 110.9).
On 6 December 2004 the Tribunal wrote to the applicant (CB 71 to CB 72). The letter was sent to the applicant’s authorised recipient who was his then migration adviser (as directed by the applicant - CB 60) and:
1)Pursuant to s.359A of the Migration Act 1958 (“the Act”) invited comment on the following information:
“Departmental records indicate that on the date of your application for a Partner visa (29 June 2004) you did not hold a substantive visa as your last substantive visa, Category UA - 660 (Visitor), ceased to be in effect on 11 May 1991.” (CB 71.6)
The Tribunal explained that this information was relevant to the review because it revealed that the applicant was unable to satisfy Clause 3001(1) of Schedule 3 of the Regulations.
2)Pursuant to s.359(2) of the Act the Tribunal invited the applicant to provide additional information which it saw as being relevant to the review of the decision. This was:
“Whether there were compelling reasons at the time of application for waiving the Schedule 3 requirements.” (CB 72.2)
Through his migration adviser, by letter dated 20 December 2004 the applicant confirmed that he did not hold a substantive visa at the date of application and made submissions in relation to compelling circumstances that in the applicant’s view justified waiver of the Schedule 3 criteria (CB 73 to CB 74).
On 10 February 2005 the applicant was invited to attend a hearing before the Tribunal (CB 76 to CB 79). The applicant attended the hearing on 18 February 2005 (CB 83). The Tribunal took evidence from the applicant who was assisted by an interpreter in the Punjabi language (CB 80). The Tribunal also took evidence from three other witnesses. The applicant’s representative was also present at the hearing before the Tribunal (CB 83). The applicant provided material to support his application, and in particular as it related to his and his sponsor’s personal circumstances and this was relevant to the extent that it went to the issue of “compelling circumstances”. This material is reproduced at CB 88 to CB 96.
The Tribunal's decision record is at CB 99 to CB 114. The Tribunal comprehensively reviewed the circumstances put forward by the applicant, particularly the relationship with his sponsor and the impact of the applicant’s failed former marriage and the psychological, emotional and physical circumstances of both the applicant and his sponsor. As I have already set out, the Tribunal found, and it is not in dispute, that the applicant did not hold a substantive visa at the time of making the application for the spouse visa and therefore could not satisfy this requirement in Schedule 3 criterion 3001 of the Regulations (CB 110.8). The Tribunal considered the question of whether there were compelling reasons for not applying this relevant Schedule 3 criterion and found:
1)That in context of the claimed ending of the visa and the applicant’s earlier marital relationship, that the current de facto relationship between the applicant and his sponsor did not commence any earlier than March 2004 (CB 112.7).
2)That the large part of the difficulties faced by both the applicant and his sponsor were unaffected by their recent relationship (CB 113.4 to CB 113.6).
3)Considering all the circumstances before it the Tribunal found that there were no compelling reasons such that the Schedule 3 requirements should not be applied. While the Tribunal acknowledged that the parties would be separated for some period, and that this would cause some disruption to their lives, the Tribunal was of the view that considered the relevant circumstances were not such as could be considered compelling reasons for not applying the relevant criteria (CB 113.8).
4)I should note the respondent’s submissions that in Ho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1104 Pascoe CFM said at [25]:
“Whether reasons are or are not "compelling" is a question of fact and degree (See Patel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 115 at [10], per Hely J; Khanfer v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 238 at [10]-[11], per Raphael FM), for the Tribunal, and its determination on that issue does not involve a question of law as contended for the applicant. So long as the Tribunal asked itself the correct question, as it did, its characterisation of reasons as not being compelling was a finding of fact that does not and cannot disclose jurisdictional error unless it is a jurisdictional fact.”
5)On this basis the Tribunal found that the applicant was unable to meet the criteria prescribed at subparagraph 820.211(2)(d)(ii) of the Regulations, and as he did not satisfy all the criteria prescribed for the grant of the visa, pursuant to s.65 of the Act, the visa application must be refused.
6)The Tribunal found further that as the grant of any class BS visa required the granting and holding of a class UK visa, and as the applicant did not meet the class UK visa requirements, that as a result he must also be refused any class BS visa (CB 114.2).
The application to this Court states the grounds of the application as:
“1)The applicant is a long-standing de facto relationship.
2)The hardship which could result in applying the Schedule 3 criteria.
3)Both of our past life experience brought us together very quick and became husband and wife relation.
4)Same culture and language also helped to come close to together.”
In his claims the applicant states:
“1. The Tribunal failed to take relevant consideration into account to exercising it’s power to determine to the applicant as a de facto relationship.
2.A jurisdictional error of law involving an incorrect interpretation of the applicable law to fact of the cased was found in the decision by the Tribunal.
3.The Tribunal did not consider the application properly.”
The applicant appeared before me unrepresented. He was assisted by an interpreter in the Punjabi language. Mr. Reilly appeared for the respondents. The applicant had filed, on 5 September 2005 and 24 October 2005 respectively, affidavits affirmed on 4 September 2005 and 30 September 2005. The respondent filed a Notice of Objection to Competency on 5 October 2005 objecting to the jurisdiction of this Court to try the application for judicial review on the grounds that, as the Tribunal decision was made on 7 March 2005, and as s.477(1A) of the Act provides that an application to this Court must be made within 28 days of notification of the Tribunal decision, and as the applicant did not make his application until 5 September 2005, outside the
28-day period, then the Court lacked jurisdiction to try this matter.
I note the case of Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2, a Full Federal Court decision made on 4 November 2004 that upheld the judgment of Nicholson J. who at first instance held that an appeal against a privative clause decision, lodged outside the time limit specified in s.477 of the Act, is in those circumstances, incompetent unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days. The issue of whether the decision complained of is a privative clause decision or not requires an examination of the grounds of review.At the hearing before me the applicant stated that he wanted to stay in Australia. He said he saw the Tribunal’s decision as saying that he and his sponsor did not have a genuine relationship and he wanted the Court to confirm with his sponsor who was present in Court that he was in a genuine relationship with her. Clearly the Tribunal’s decision did not involve such a finding. In fact the Tribunal found that a de facto relationship did exist. The Tribunal’s finding as to the time of the commencement of the relationship was open to it on the material before it and it gave reasons for this. I could see no utility therefore in hearing from the sponsor on an issue that was properly considered by the Tribunal, where there was no dispute as to the existence of the de facto relationship and where the timing of the commencement of the relationship was the subject of a finding clearly open to the Tribunal to make on what was before it. The applicant also complained “first that his wife created trouble”. Again in the context of the Tribunal’s findings, particularly where it addressed the issues relating to the applicant’s former marriage and how they may impact on the issue of “compelling circumstances”, it made findings which were open to it. This complaint could not assist the applicant in showing jurisdictional error in the Tribunal’s decision.
The applicant’s stated grounds in his application do not particularise any error in the Tribunal's decision. The claims assert that the Tribunal failed to take into account a relevant consideration, but do not say what this failure was. Nor was the applicant able to assist before me today in this regard. Further, the claims assert that there was an “incorrect interpretation of the applicable law”. Similarly the applicant was unable to state what the incorrect interpretation was. Finally the claims assert that the Tribunal did not consider the application properly. The “grounds” of the application do not reveal error on the part of the Tribunal. They assert claims before the Tribunal. Namely, that the applicant was in a long standing de facto relationship, that there was hardship in “applying the Schedule 3 criteria” and that experience, culture and language brought the applicant and the sponsor “close together” “very quick”. In the circumstances, at best these matters amount to a claim for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The applicant's affidavits and attached material goes to the applicant’s history in Australia and his personal circumstances. The affidavit of
30 September 2005 attaches various character references, and material relating to the applicant’s immigration history during his time in Australia. There is also material relating to the applicant’s sponsor, which was put before the Tribunal. Even taking into account all this material and the matters asserted I can see no error in the Tribunal's decision.The Tribunal clearly set out the relevant law, and the circumstances of the applicant's claims. It wrote to the applicant drawing his attention to certain information it had received from the first respondent’s Department, and advised the applicant of the relevance of this information to his application, and gave the applicant an opportunity to provide additional information both in writing and at a hearing before the Tribunal. The applicant also took up the opportunity to present witnesses to provide evidence in support of his claims. The Tribunal clearly took this into account and recounted written, medical and other evidence put to it. The findings made by the Tribunal were all open to it on the material before it, and it gave comprehensive reasons. It is, as Mr. Reilly in my view correctly submits, that the grounds and claims of the applicant now at the very highest do no more than seek merits review of the Tribunal's decision. Clearly the Court cannot review the merits of the Tribunal's decision.
For the sake of completeness, I also note that the affidavit of
4 September 2005 affirmed by the applicant on that date, appears to seek to explain the delay in making the application to this Court. The applicant asserts that he “applied to the s.417 (Ministerial Appeal after Migration Review) after the Tribunal (MRT) refuge”. Clearly the decision before me for review was as the applicant states in his application:“The applicant was notified of the decision that is the subject of this application on 07 date of March 2005 MRT file number N0405651.”
It is quite clear that this is a Migration Review Tribunal decision and it is difficult to understand the reference to s.417 which of course flows with matters that have been before the Refugee, and not the Migration, Review Tribunal. But in any event, even if what the applicant asserts as a “s.417 Ministerial Appeal” was made pursuant to s.351, then this would not serve to assist the applicant either in relation to showing jurisdictional error on the part of the Tribunal’s decision or as it may seek to explain the delay in coming to this Court in relation to the respondent’s Notice of Objection to Competency. In any event, there is no jurisdictional error in the Tribunal's decision. It is, as Mr. Reilly submits, a privative clause decision within s.474 of the Act. I uphold the respondents Notice of Objection to Competency in these circumstances. The application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 23 January 2006
0