Kumar v Minister for Immigration

[2018] FCCA 2585

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2585

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – cancellation of student visa – where decision to grant the visa to the Applicant was based on spousal relationship with primary visa holder and relationship no longer existed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 116, 476

Migration Regulations 1994 (Cth), reg.112

Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 92 ALJR 780

Shrestha v Minister for Immigration and Border Protection [2018] HCA 35;

(2018) 92 ALJR 798

SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA

35; (2007) 232 CLR 189

Applicant: PARDEEP KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1626 of 2016

Judgment of: Judge Barnes

Hearing date: 29 August 2018

Delivered at: Sydney

Delivered on: 29 August 2018

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms Winnett

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1626 of 2016

PARDEEP KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 June 2016.  The Tribunal affirmed a decision of the delegate of the First Respondent to cancel the Applicant’s Subclass 573 (Higher Education Sector) visa.

2. On 14 November 2014 the Applicant was granted a Subclass 573 student visa on the basis of being a member of the family unit of his wife, Ms Kaur, who was the primary applicant for the student visa (see cl.573.311 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations)).

3. At all relevant times s.5 of the Migration Act 1958 (Cth) (the Act) provided that a member of the family unit of a person had the meaning given by the Regulations for the purposes of that definition.

4. Regulation 1.12(2) relevantly provides that a person is a member of the family unit of an applicant for a student visa if the person is a spouse or de facto partner of the applicant for the student visa.

5. At the relevant time the definition of “spouse” in s.5F of the Act was:

   (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.

(emphasis in original)

1. On 11 August 2015 a delegate of the Minister sent the Applicant a notice of intention to consider cancellation of his student visa under s.116(1)(a) of the Act which provides that the Minister may cancel a visa if satisfied that “the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists”.

2. The delegate put to the Applicant that it appeared he was no longer a member of Ms Kaur’s family unit.  The notice informed him that on 18 June 2015 the Department had received information that he was no longer in a relationship with Ms Kaur.  It is apparent that this is a reference to Case Notes in the Courtbook referring to emails and telephone confirmation by Ms Kaur that she and Mr Kumar were not living together and were no longer in a relationship.  According to departmental records Ms Kaur advised that she and Mr Kumar moved to Australia in November 2014, but after a week Mr Kumar moved to Sydney and that they had not been together since that time.  She confirmed that she had not been in a relationship with Mr Kumar since November 2014.

3. Mr Kumar was given the opportunity to make comments on why he thought the ground for cancellation did not exist and why he thought the visa should not be cancelled.  He replied by letter of 14 August 2015 as follows:

   …Please don’t accept any information in this regard without any legal document proof.  I would like to update you that you have been misled or wrongly informed regarding my relation.  Yes I am living far from her but that doesn’t mean we are not in relation.  I love her and we are in relation legally.

4. On 28 August 2015 a delegate of the Minister cancelled Mr Kumar’s visa on the basis that there was a ground under s.116(1)(a) and the delegate was satisfied that the grounds for cancellation outweighed the reasons for not cancelling the visa.

5. Relevantly, the delegate had regard to the fact that the Department had received advice from the primary visa applicant, Mr Kumar’s wife, that the relationship was over and that she and the Applicant were living apart permanently.  The delegate could not be satisfied that there was a mutual commitment to the relationship.  He gave little weight to the Applicant’s claim that they were still legally married, giving more weight to the evidence that he had ceased to be in a married or de facto relationship.  The delegate was satisfied that the key circumstances that had permitted the Applicant to be granted the visa no longer existed.  After weighing various discretionary factors, the delegate concluded that the grounds for cancellation outweighed the grounds for not cancelling the visa.

6. The Applicant sought review by the Tribunal.  He attached a copy of the delegate’s decision to his review application.  He attended a Tribunal hearing.  A transcript of the Tribunal hearing is in evidence as an annexure to an affidavit of Toufic Laba Sarkis filed on 29 November 2016.

7. The Tribunal affirmed the decision of the delegate. In its reasons for decision it noted the basis on which the visa had been cancelled. The Tribunal stated that the issue was whether the ground for cancellation was made out and, if so, whether the visa should be cancelled. It referred to s.116(1) of the Act.

8. The Tribunal recorded that in the course of the hearing it had discussed information in the delegate’s decision record with the Applicant, specifically the fact that it appeared that Ms Kaur had advised the Department that she and the Applicant were no longer in a relationship and that this meant he was no longer a member of her family unit.  Consistent with what appears in the transcript of the Tribunal hearing, the Tribunal recorded that the Applicant was asked on several occasions whether he and Ms Kaur were no longer in a relationship and that he had stated that Ms Kaur had deserted him and cheated on him and that he still wanted to have a relationship with her but that she had left him.  He confirmed to the Tribunal that they were no longer in a relationship.

9. The Tribunal referred to the requirements of a married relationship in the definition of spouse in the Regulations.  It recognised that the Applicant had indicated that he would like to have a relationship with Ms Kaur.  However, on the available information, the Tribunal found that the Applicant and Ms Kaur had “ceased to be in an ongoing relationship” and that the Applicant had ceased to be either the spouse or a de facto partner of Ms Kaur.  Therefore it found that he had ceased to be a member of her family unit and that as his visa had been granted on the basis of him being married to Ms Kaur, that basis no longer existed.  For these reasons the Tribunal was satisfied that the ground for cancellation existed.

10. As those circumstances did not require mandatory cancellation under s.116(3) of the Act, the Tribunal went on to consider whether the power to cancel the visa should be exercised. It had regard to relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual.

11. In particular, the Tribunal had regard to the purpose of the Applicant’s travel to and stay in Australia as a member of his wife’s family unit.  However, relevant to the grounds of review, the Tribunal then stated:

    As found above, the relationship which formed the basis of the Applicant’s membership of Ms Kaur’s family unit no longer exists.

12. The Tribunal acknowledged that the Applicant had not breached any visa condition, but observed that his spousal relationship with Ms Kaur had ended.  It also acknowledged that Mr Kumar still wanted to have a relationship with Ms Kaur.  While satisfied that Mr Kumar had his own personal wishes about the relationship, on the evidence before it the Tribunal reiterated that it was satisfied that the relationship had ceased.

13. The Tribunal considered the degree of hardship that may be caused to the Applicant if his visa was cancelled.  Its approach in this respect reflected consideration of matters that the Applicant raised during the Tribunal hearing.  It referred to his evidence about his work, personal and family circumstances and his expressed wish to undertake studies in English.  It noted that he had not pursued any such studies and that, on his own evidence, he was working in Australia.  It was of the view that this suggested that his current purpose in remaining in Australia was to work.

14. The Tribunal accepted that if the visa was cancelled this may cause the Applicant some financial difficulty, particularly in light of his evidence that he had given Ms Kaur approximately $25,000, being the proceeds of sale of family assets in India.  It had regard to his potential liability to be removed from Australia and the limited options he had to apply for further visas whilst onshore.

15. The Tribunal also acknowledged the Applicant’s personal disappointments and sadness about what had happened with his marriage.  It accepted that the cancellation would undoubtedly cause him some personal challenges.  It stated that it had taken these matters into account and that it appreciated that the cancellation may cause the Applicant a certain degree of hardship.  It was not, however, satisfied that there was a degree of hardship that outweighed the reasons to cancel the visa.

16. The Tribunal referred to other factors, before concluding that, having taken into consideration all relevant matters and the evidence as a whole and the stated reasons, it was satisfied that there were not factors that led to the favourable exercise of discretion.  Considering the circumstances as a whole, the Tribunal concluded the visa should be cancelled.  Accordingly, it affirmed the delegate’s decision to cancel the visa.

17. The Applicant sought review by application filed in this court on 27 June 2016.  He filed a supporting affidavit which attached a copy of the Tribunal decision and complained generally of “judicial” error, which I take to be intended to be a reference to jurisdictional error.

18. The Applicant was given the opportunity to file an amended application.  He did not do so.  However he did file a transcript of the Tribunal hearing and also written submissions which the Minister’s submissions addressed as potentially raising other grounds of review.  I have also considered his submissions on that basis.

19. The grounds in the application are:

    1. Department of Immigration and Boarder Protection (DIBP) had cancelled my Student Dependent Visa Application Subclass 573. where I was in continuous relationship with my partner. But the DIBP didn’t consider it and cancelled my Visa.

    2. Then I lodged an appeal against my Visa Cancellation to Administrative Appeal Tribunal. Administrative Appeal Tribunal invited me to hearing But the AAT member also did not agreed and refused my application for Appeal.

    I believe DIBP and MRT-RRT made Judicial Error which needs to be rectified.

    (errors in original)

20. Insofar as the Applicant seeks review of the delegate’s decision, that decision is a primary decision and is not reviewable in these proceedings (see s.476(2)(a) of the Act).

21. If ground 1 is suggesting that the Tribunal cancelled the visa although the Applicant was still in a spousal relationship with his partner, this misunderstands the basis for the decision.  It is apparent that, as referred to in the Tribunal’s reasons for decision and as is consistent with the transcript of the Tribunal hearing, the Tribunal raised with the Applicant, on several occasions, the basis on which his visa had been cancelled.  It put to him that it appeared that he was no longer in a relationship with his wife.  His evidence was that he had had a relationship with her, but that she had deceived him, had cheated on him, had a relationship with another person and that he had no contact with her whatsoever at the time of the Tribunal hearing.  When asked: “So you are no longer in a relationship with her?”, he confirmed: “…at the moment, no relationship with her.”

22. The Tribunal explained to the Applicant the legal consequences of this fact in relation to whether he was still a member of Ms Kaur’s family unit. 

23. In its reasons the Tribunal recognised that the Applicant claimed that he still wanted to have a relationship with his wife, but also that he had confirmed at the hearing that the current circumstances were that he was no longer living with her and not in a relationship.

24. The Tribunal considered the Applicant’s evidence in this respect and whether the relationship had ended.  Ground 1 is not made out.

25. Ground 2 is a general complaint that the Tribunal member did not agree (presumably with the Applicant’s contention that he was still in a relationship with his partner) and refused the review application.  It was claimed that this involved “Judicial (sic) Error which needs to be rectified”.

26. It is apparent from the Applicant’s written submissions that his concern is that the marriage had not ended in divorce, that it was initially a genuine marriage and that he wanted to have a relationship with his wife if he found her.  He claimed that the basis on which his visa was granted continued to exist at the time of the decision of the Tribunal.

27. The Applicant claimed to the Department that he was “in relation legally” with his wife.  However his oral evidence to the Tribunal was to the effect that he was no longer in fact in a “relationship” with his wife.  The Tribunal understood this evidence.

28. This ground appears to involve an assumption on the part of the Applicant that his visa could not be cancelled unless he was divorced from his wife.  This is apparent from his contention that the Tribunal did not have any document demonstrating that the relationship was over and did not have any divorce document.  This complaint is repeated through his submissions.  He also complains that the Tribunal did not give him any documents to support its finding that the relationship had ceased.

29. These contentions misunderstand the basis for the Tribunal decision and the requirements of the Act and Regulations. As discussed above, the Tribunal made a finding within s.116(1)(a) of the Act to the effect that a particular fact or circumstance that was the basis for the grant of the Applicant’s visa no longer existed in finding that the Applicant and Ms Kaur had ceased to be in an ongoing relationship.

30. I accept that, as contended for by the First Respondent, notwithstanding some ambiguity or lack of clarity in the manner in which the Tribunal expressed itself in paragraph 10 of its reasons (insofar as it also stated that the Applicant’s visa was “granted on the basis of him being married to Ms Kaur” and “that basis no longer exists”), reading the Tribunal’s decision fairly and as a whole, it is clear that the Tribunal was considering whether the spousal relationship (the fact or circumstance which had formed the basis for the grant of the visa to the Applicant as a member of Ms Kaur’s family unit) no longer existed.  This is apparent from the various references to the fact that the Applicant was no longer in a relationship with Ms Kaur.  This clearly reflected the fact that the definition of a married relationship requires not only a valid marriage, but also mutual commitment, a genuine continuing relationship, and that the persons live together or do not live separately and apart on a permanent basis.

31. In circumstances where Mr Kumar had confirmed to the Tribunal that he was no longer in a relationship with his wife, the Tribunal’s finding in relation to s.116(1)(a) is not attended by jurisdictional error. There was, as the Minister submitted, an evidentiary foundation for its finding in this respect in the information described in the delegate’s decision record (that Ms Kaur had advised that she and the Applicant were no longer in a relationship) and also in the Applicant’s evidence at the Tribunal hearing that Ms Kaur had deserted him some three to four weeks after they started living together in Australia, had deceived and cheated on him and had a relationship with some other boy, that he had no contact with her whatsoever at the time and that they were no longer in a relationship.

32. It was not necessary for the Tribunal to have documentary evidence, such as evidence of a divorce, to reach that factual conclusion. Further, the fact that the Applicant was still legally married and wished to resume a relationship with Ms Kaur did not mean that the Tribunal’s finding was affected by error. Rather, it reflected a correct application of s.116(1)(a) of the Act.

33. In submissions the Minister addressed the potential relevance of the decision of the High Court in Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 92 ALJR 798 but submitted, and I accept, that in this case the Tribunal’s findings reflect a correct application of s.116(1)(a) of the Act. Reading the decision fairly and as a whole, the Tribunal did not focus on a legal characterisation of a state of affairs, as opposed to a factual state of affairs, in identifying the relevant fact or circumstance that enlivened s.116(1)(a) of the Act. The relevant fact or circumstance considered by the Tribunal was the existence of an ongoing relationship between Ms Kaur and the Applicant. Even if the reference to the visa being granted on the basis of the Applicant being married to Ms Kaur and that basis no longer existing may be problematic in isolation, read in context this was clearly a reference to the absence of an ongoing relationship.

34. In any event, I also accept that, as contended for by the First Respondent, if the Tribunal did ask a different question involving a legal characterisation (such as whether the Applicant was no longer part of Ms Kaur’s family unit for the purposes of reg.1.12 of the Regulations), consistent with the approach taken in Shrestha at [10] (and also see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780, cited in Shrestha), it could have no impact on the Tribunal’s decision and hence could not be characterised as a jurisdictional error. The Tribunal’s findings demonstrate that it was clearly satisfied as to the non-existence of a matter that undoubtedly enlivened the cancellation power, being the circumstance referred to on numerous occasions in its reasons that the Applicant and Ms Kaur were no longer in an ongoing relationship.  The Tribunal’s reasoning in relation to the discretionary factors is also such that it is clear that it would not have exercised its discretion differently if it had correctly (as I consider that it did) asked whether the relationship still existed.  Throughout its discussion of the discretionary factors the Tribunal also referred, correctly, to the breakdown of the Applicant’s relationship with Ms Kaur.  The existence of an ongoing relationship was the factual matter that had permitted the grant of the visa to Mr Kumar on the basis that at the time of the grant of the visa he was Ms Kaur’s spouse for the purposes of the Act.

1. While not raised in submissions for the Applicant, I note for the sake of completeness that it is apparent from the transcript of the Tribunal hearing that the Tribunal raised with the Applicant the fact that (as recorded in the delegate’s decision) the Department had received evidence that it appeared that he was no longer in a relationship with his wife.  The Tribunal advised him that it was Ms Kaur who had told the Department that the two of them were no longer in a relationship and that as far as she was concerned the relationship was over.  In this way the Tribunal raised the dispositive issue with the Applicant.

2. The challenge that the Applicant makes to the Tribunal’s finding that his “relationship” with Ms Kaur had ceased does not establish jurisdictional error.

3. In the written submissions the Applicant also raised a concern in very general terms that “I am a victim at the hand of my wife as well as my migration agent”.  He referred to the agent named on page 44 of the Courtbook, which is a copy of the application for review including a representative’s details.

4. I asked the Applicant about his concerns in this respect.  He said that he was a victim in the sense that he had spent money for his wife.  He complained about what she had done.  He also complained that his migration agent “was of no help”, so he got help from a friend.

5. However, as the First Respondent submitted, there is no suggestion or evidence of any fraud on the part of a third party that could vitiate the Tribunal’s decision (see SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189 at [30]-[32]). Indeed, in an email sent to the Tribunal by the migration agent named in the application for review, the agent advised that the Applicant was not his client and suggested that he had misused his name for the application. It is not necessary to explore that issue further. It is clear from the material that is before the court and what was said by the Applicant that there is no suggestion of anything that raises any concern about possible third party fraud such as to require further consideration.

6. Further, the Applicant’s concern about the conduct of his wife (however understandable) is not indicative of jurisdictional error.

7. The Applicant’s written submissions may also be seen as raising a challenge to the Tribunal’s exercise of discretion.  The Applicant’s complaint appears to be that the Tribunal did not find in his favour, notwithstanding the circumstances that he raised.  Issue is taken with the fact that the Tribunal did not accept that the degree of hardship to him outweighed the reasons to cancel the visa.  It was contended that the Tribunal failed to take his circumstances into account, and that the failure of the Tribunal to exercise its discretion in his favour amounted to a denial of fairness and natural justice.

8. When asked, the Applicant did not suggest that the Tribunal had failed to consider any aspect of his circumstances.  In effect, it is apparent that he disagrees with the Tribunal’s conclusions.  He repeated some of his claims about his circumstances.  This sought impermissible merits review.

9. I asked the Applicant what he meant by the suggestion in his written submission that he was “not taken as a victim of violence” even though he claimed he had made clear to the Tribunal what happened to him at the time at the hand of Ms Kaur.  He talked about her having a boyfriend.  He told the court that he got angry too and that they had fights.  However it is clear from the transcript that the Applicant did not raise any issue of domestic violence with the Tribunal.

10. The Tribunal expressly considered the circumstances raised by the Applicant.  In particular, it considered and accepted that a degree of hardship may be faced by him having regard to his financial circumstances, the consequences of the visa being cancelled, and his personal disappointments and concerns.  However it found that this did not outweigh the reasons to cancel the visa.  In other words, the hardship issues were not of sufficient weight to warrant the exercise of the discretion in the Applicant’s favour, either considered alone or cumulatively with all the other factors to which the Tribunal referred.

11. Such an evaluative judgment was open to the Tribunal on the material before it.  There is nothing in the circumstances of this case to suggest that the Tribunal’s exercise of its discretion was legally unreasonable or reflected a misapplication of its statutory task.  I note that the weight to be given to competing circumstances is a matter for the Tribunal, subject of course to the constraint of legal unreasonableness.  There is nothing to give rise to any concern in that respect in this case or to suggest any failure by the Tribunal to have regard to any matter raised by the Applicant.

12. The Applicant’s disagreement with the conclusion reached by the Tribunal is not indicative of jurisdictional error.  Contrary to his submission, the fact that he was not divorced did not mean that the Tribunal could not reach the conclusion that it reached.  There was also no obligation on the Tribunal to give the Applicant documents (or to be satisfied that the Applicant was divorced) to support its finding that the relationship had ceased.

13. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  12 September 2018