Khanfer v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FMCA 238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHANFER v MINISTER FOR IMMIGRATION [2003] FMCA 238

MIGRATION – Review of decision of the Migration Review Tribunal – application for a temporary partner visa – where the applicant did not hold a substantive visa at the time of application – whether there were any compelling reasons for not lodging the application in time – whether Tribunal misunderstood meaning of exceptional reasons – whether the decision is reviewable.

Judiciary Act 1903 (Cth), s.39B

Patel v Minister for Immigration [2003] FCA 115
Secretary of the Department of Social Services v Hodson (1992) 37 FCI 32

Applicant: MOHAMMAD SAR KHANFER

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1111 of 2002

Delivered on: 29 May 2003

Delivered at: Sydney

Hearing date: 29 May 2003

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: John Sarroff & Co

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1111 of 2002

MOHAMMAD SAR KHANFER

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks review of a decision of the Migration Review Tribunal (MRT) made on  21 August 2002.  This decision affirmed a decision of a delegate of the Minister that the applicant was not entitled to the grant of a Partner (Temporary) (Class UK) visa.

2. The applicant entered Australia on a subclass 560 student visa on 11 October 1998.  The visa was valid until 5 March 1999 and on

   
   

   3 March 1999 he was granted another student visa.  This later student visa expired on 24 April 2000.  The 24 April 2000 was Easter Monday and a public holiday.  The 25 April 2000 was Anzac Day and a public holiday.

3. On 27 April 2000 the applicant made an application for a Partner (Temporary) (Class UK) visa.  When that visa came to be considered by the delegate it was considered under sub paragraph 820.211(2) (d)(ii) of the Migration Regulations.  This sub section is set out in detail at page 45 of the court book.  That sub section required the applicant either to be the holder of a substantive visa at the time the application was made or to satisfy Schedule 3 Criterion 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

4. The reason why the applicant was not the holder of a substantive visa at the time he made his application is because he made his application on 27 April and his substantive visa had run out on 24 April.  He could not have made an application on the 24  April nor on the 25 April.  The first day he could possibly have made this application after 24 April was the 26 April.  Of course, and this is accepted by the solicitor for the applicant, it was open to the applicant to have made this application at a time prior to the expiry of this substantive visa so long as he could comply with the other criteria in relation to his claim that he was a spouse of a person who was an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.  I understand, that in respect of this applicant, that date was 11 April.

5. The Tribunal considered whether or not there were compelling reasons for not applying the criterion which was set out in Schedule 3 Criterion 3001, 3003, 3004.  It noted that on 11 February 2002 a letter had been written to the applicant pursuant to section 359A of the Act requiring him to comment on two distinct matters.  The first matter related to the date upon which he commenced cohabitation with the nominator.  The second related to the fact that at the time of the visa application on the 27 April 2000 he did not hold a substantive visa.  The letter advised the applicant and his solicitor, to whom a copy had been sent, that written comments should be provided within 28 calendar days of the date of notification of this invitation.  That date was seven days after the day of letter namely, the 18 February 2002.  A response to the letter was therefore, due by 18 March 2002 at the latest. 

6. No response was received on that day but on 27 March 2002 by facsimile, the applicant's solicitor wrote to the Tribunal advising that the applicant and his wife met on 10 February 1999 and that cohabitation commenced on 10 April 1999.  The facsimile does not address, in any way whatsoever, the queries relating to the fact that the applicant did not hold a substantive visa as at the date of the visa application.  I interpose here to say that the letter under 359A also dealt with the requirements contained in Criterion 3001, 3003 and 3004 and in regard to those requirements, no information was provided.

7. The Tribunal determined to deal with this matter under s.359C because of the failure by 18 March 2002 by the applicant to respond to the 359A letter.  Pursuant to s.360 of the Act, the visa applicant was not entitled to appear.  The Tribunal considered the application on the information which was then before it. But prior to coming to its conclusion it received the letter dated 27 March 2002 that is referred to in paragraph 15 of the decision.

8. The Tribunal's view was that the medical certificate supplied by the applicant did not indicate compelling reasons why he was unable to lodge his application whilst he was still the holder of a substantive visa.  The phrase being used was, “that he was not the holder of a substantive visa because of factors beyond his control.”  The Tribunal pointed to the fact that the medical reports dealt exclusively with the condition of the nominator and not with the applicant himself.

9. Having found that the applicant did not hold a substantive visa because of factors beyond his control, the Tribunal found that he did not satisfy Criterion 3004.  The Tribunal then went on to consider whether there were compelling reasons for not applying that criterion.  It came to the conclusion that as the only evidence that was available to it was the two medical certificates about which comment has already been made,  no such compelling reasons existed.

10. In Patel v Minister for Immigration [2003] FCA 115 Hely J considered a decision of the MRT where "exceptional reasons" were a matter to be taken into account. At [10] His Honour said

    “It is apparent that the MRT's decision turns on an issue of fact, in particular, whether it was satisfied that exceptional reasons existed for the grant of the visa.”

    There is nothing to suggest that the MRT misunderstood the meaning of "exceptional reasons".  Whether "exceptional reasons" exist is essentially a question of fact and degree for the MRT to determine.  Its determination on that issue involves no question of law (see Secretary of the Department of Social Services v Hodson (1992) 37 FCI 32 at 42 in the context of the expression "special circumstances").

11. I am of the view that the phrase "compelling circumstances" is for the purposes of a decision on the law, no different from the phrase "exceptional reasons".  I would accept the view of Hely J that this is essentially a question of fact.  It is most unfortunate that the Tribunal did not have before it some submission from the applicant concerning the reason for the delay.  As it was put to me by Mr Sarroff, there were two grounds that could have been made out to the Tribunal.  The first was that the imposition of the public holidays prevented the applicant from making his application on the last day of the visa's validity; the second was that the real importance of the medical certificates was not to indicate the condition of the applicant or whether or not the applicant had to look after the nominator but to indicate that the nominator was unable to sign the nomination papers.  These matters were not put to the Tribunal and I cannot re-make the Tribunal's decision as if they had been.

12. In all the circumstances I am unable to see any grounds on which it could be alleged that the Tribunal fell into jurisdictional error such as to ground review pursuant to s.39B of the Judiciary Act 1903 (Cth). I therefore, dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $2,250.00 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: