Kumar v Minister for Immigration

[2017] FCCA 641

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 641

Catchwords:
MIGRATION – Application for Partner (Temporary) (Class UK) visa.

PRACTICE & PROCEDURE – Application for reinstatement under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) – whether the applicant’s application has sufficient merits for reinstatement – no reasonable grounds – application for reinstatement dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Applicant: AMITESH KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1569 of 2016

Judgment of: Judge Smith

Hearing date: 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A. Day, DLA Piper Australia

ORDERS

1. The application for reinstatement under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1569 of 2016

AMITESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for reinstatement of an application for review of the decision of the Administrative Appeals Tribunal made on 19 May 2016. 

2. The matter was listed for callover before me on 23 February 2017 and at that time the applicant did not attend. As a consequence, the application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth). The applicant says that he confused the date of the callover and thought it was on 27 February 2017. When he attended on that day, he discovered that the matter had been dismissed.

3. I accept that that is the case. In any event, on the same day he made an application for an order under r.16.05 of the Rules, in effect seeking reinstatement of the application. The Minister opposes that application, saying first, that the explanation for the failure to appear was inadequate and secondly, that there is no merit in the application itself. I do not accept that the explanation was inadequate. The fact that the applicant filed this application for reinstatement on 27 February 2017 supports his claim to have mistaken the date for whatever reason, and suggests to me that he was genuine in the reasons that he gave for not appearing at the callover on 23 February 2017.

4. On that basis, ordinarily, given the short period within which the applicant made the application for reinstatement, I would make the order sought and set the matter down for hearing.  However, in this case it is also relevant in the exercise of the Court’s power to determine whether there would be any utility in doing so.  By that, I mean whether or not there are sufficient merits in the application. 

Consideration

1. In his application for review, the applicant set out the following grounds:

   1)I would like to have my application Review in Court.

   2)My decision has been dismissed wrongly as they (AAT) didn’t overlook my case properly and would like to take the exercise for the Federal Court to review my case for wrong doings.

2. The applicant explained that his complaint with the Tribunal’s decision is that it made a decision against him.  I understand that that may cause some grievance to the applicant; however it is not sufficient to show any merit in the application. In order for the applicant’s application to succeed, he must show that there is some jurisdictional error in the Tribunal’s decision.  That is, there is some sufficiently serious legal or procedural error that has affected the Tribunal’s exercise of its jurisdiction. 

3. The Tribunal was reviewing a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.  There are a number of criteria for that visa which the applicant had to satisfy in order to be granted the visa. The criteria had to be satisfied at the time when the visa application was made as well as at the time of the decision. The criteria included that the applicant was a spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.  In the applicant’s case, he claimed to be the spouse of the sponsor who was an Australian citizen. 

Tribunal’s decision

1. The applicant was invited to attend a hearing conducted by the Tribunal and did so on 19 May 2016. 

2. In its decision made on 19 May 2016, the Tribunal noted that the applicant stated in his oral evidence that his relationship with the sponsor had ended and that they were separated.  The Tribunal found on that basis that the applicant’s relationship with the sponsor had ceased.  It also noted that there was no evidence that the applicant and his sponsor;

   i)lived together;

   ii)had a joint household;

   iii)that they shared their finances; and

   iv)that they represented themselves to others as being in a partner relationship.

3. The Tribunal noted that there was no evidence that there continued to be a mutual commitment to the relationship by the applicant or his sponsor.  For those reasons, the Tribunal found that the applicant was not the spouse of his sponsor. 

4. There are exceptions in the criteria that apply in certain circumstances where the spousal relationship is no longer in existence at the time of the decision.  The Tribunal dealt with each of those and found that those exceptions did not apply.  For those reasons, the Tribunal was not satisfied that the criteria for the visa were met. 

Conclusion

1. I cannot see any error in the way in which the Tribunal conducted its review; in particular in the findings that it made.  Ultimately, it was the applicant’s own evidence that satisfied the Tribunal that he was no longer in a relationship and therefore that the criteria for the grant of the visa could not be met. 

2. Having reviewed the material, and, in particular the decision of the Tribunal, I am not satisfied that there is a sufficiently arguable case to warrant an order reinstating the matter pursuant to r.16.05, and for that reason the application will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  5 April 2017