KUMAR v Minister for Immigration

[2015] FCCA 2709

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2709

Catchwords:
MIGRATION – Migration Review Tribunal – partner visa – application for visa lodged out of time – whether compelling reasons to extend time – whether applicant’s Australian born child had been conceived at the time of the application – whether tribunal misled applicant during hearing.

Legislation:
Federal Circuit Court Rules 2001, r.44.12

Migration Regulations 1994 (Cth), sch. 2 cl.820.211, cl.820.221, sch. 3 criterion 3001
Migration Act 1958 (Cth), s.359AA

Applicant: AJAY KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 2613 of 2014

Judgment of: Judge Riley

Hearing date: 4 September 2015

Date of last submission: 4 September 2015

Delivered at: Melbourne

Delivered on: 4 September 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Advocate for the first respondent: Ned Rogers

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 22 December 2014 be adjourned for final hearing on 16 November 2015 at 2:15pm.

2. The first respondent file and serve a court book within seven days.

3. The applicant file and serve an amended application within 21 days.

4. The applicant file and serve written submissions within a further 14 days.

5. The first respondent file and serve written submissions within a further 14 days.

6. Costs of today be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2613 of 2014

AJAY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. The matter comes before the court as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (“the rules”).  If the court is not satisfied that the applicant has raised an arguable case for relief the court can dismiss the application.  The first respondent asks the court to dismiss the application in this case on the grounds that there is no arguable case for relief. 

2. The applicant applied for a partner visa on 29 June 2012. One of the requirements for that visa was that the application be made within 28 days after the relevant day. The relevant day was defined in criterion 3001 of sch.3 to the Migration Regulations 1994 (Cth) (“the regulations”) to be the last day when the applicant held a substantive visa. In this case the applicant last held a dependent student visa on 10 October 2011. As the applicant applied for the partner visa on 29 June 2012, the application was made more than 28 days after the relevant day.

3. The regulations permitted the requirement in criterion 3001 to be waived if there were compelling reasons.  That appears in cl.820.21(d)(ii) of sch.2 to the regulations.  That was a time of application criterion.  The tribunal noted various authorities dealing with the notion of compelling reasons. 

4. The applicant submitted that he had an Australian born child from his marriage with the sponsor. The tribunal accepted that there was such a child who was born on9 April 2013. The tribunal accepted that the applicant was the father of that child. The tribunal further accepted that if the child had been conceived at the time of application the conception of the child would be a compelling reason that may justify the waiving of the schedule 3 requirements. The tribunal said in its reasons at paragraph 19 that it discussed with the applicant at the hearing that if the date of the conception of the child was approximately the date of application the tribunal would consider that this may amount to a compelling reason in this particular case.

5. The tribunal also discussed with the applicant's representative in the hearing that if the date of conception was outside the 38 week period of gestation then the tribunal was unlikely to be satisfied that the birth of the child arose out of circumstances that existed at the time of application.   The tribunal recorded in paragraph 20 in its reasons for decision that it discussed with the applicant and his representative that 38 weeks prior to 9 April 2013 would be the approximate date of conception.

6. The tribunal noted in its reasons that, after the hearing, the tribunal calculated that 40 weeks prior to 9 April 2013 is 3 July 2012. The tribunal said that it was satisfied that, allowing up to 40 weeks for the pregnancy, the child of the applicant was not conceived at the time of application. The tribunal concluded that the birth of the applicant’s child on 9 April 2013 could not be considered to have arisen out of circumstances that existed at the time of application. The tribunal concluded that it did not consider the fact that the applicant had an Australian born child was a compelling reason for waiving the sch.3 criteria.

7. The applicant argued before the tribunal that he provided support to the sponsor at the time of application.  The applicant reported that he had met the sponsor on an internet site.  He claimed that, while living in Victoria, he flew to Queensland to be with her on occasion. 
   He initially said that he went up to Queensland each month, but later said he went every two or three months.  The applicant also indicated that he moved in with the sponsor in March 2012, which was about three months prior to the date of application.

8. The tribunal put to the applicant a protection order made in the Ipswich Magistrates Court on 17 June 2013. That order prohibited the applicant from committing domestic violence against the sponsor and four children, three of whom the sponsor had before she met the applicant, and the other child being the child of the applicant and the sponsor. The order restrained the applicant from being in the vicinity of the sponsor or the children for a period of two years. The tribunal brought the protection order to the applicant's attention pursuant to s.359AA of the Migration Act 1958 (Cth) (“the Act”).

9. The tribunal said that it explained to the applicant that the significance of the order was that the applicant may not have been supportive of the sponsor at the time of application.  As stated, the order was made on
   17 June 2013 and the application was made on 29 June 2012. 
   The applicant consulted with his representative and chose to make submissions later in the tribunal hearing.  The representative said that the relationship had broken down after the visa application was lodged.  He said the intervention order was made almost a year after the visa application was lodged.

10. The applicant said he consented to the intervention order without admissions.  He said that, after the order was made, and he had separated from the sponsor, he continued to visit the child at the home of the sponsor.  The tribunal accepted that the relationship between the applicant and the sponsor might have been quite good at the time of application.  The tribunal also accepted that there was no evidence before it that the protection order related to any incident that occurred at the time of application.  However, the tribunal was not satisfied that the support offered by the applicant at the time of application was of such a nature that it could be considered compelling. 

11. The tribunal considered a psychological report provided by the applicant. However, the tribunal did not consider that the psychological report provided compelling reasons for waiving the sch.3 criteria. The tribunal said that it considered all the matters put to it individually and collectively, and was not satisfied that there were compelling reasons justifying a waiver of the sch.3 criteria. The tribunal considered various other provisions in the partner visa category. However, it was not satisfied that the applicant met any
    of them.  Consequently, the tribunal was not satisfied that the applicant met the criteria for the visa.

12. The applicant was not represented before this court.  His application said that he was not satisfied with the decision made by the tribunal.  He said that he believed there was an error in the decision. However, he did not say what the error was.  Before the court today the applicant said that the tribunal asked him why he did not go back to India to lodge his application.  He said that he told the tribunal that he could not go back because his ex-wife had three children.  He said that his family was no longer in contact with him because he had married outside his culture.  None of this goes to the question of whether the tribunal made a jurisdictional error. 

13. There are concerns about whether the tribunal dealt properly with the issue of the date of conception of the applicant’s and sponsor’s child.  As I understand it, human pregnancies normally last 40 weeks calculated from the date of the last period.  Often that works out to be 38 weeks from the actual date of conception. However, as is well known, pregnancies can last more than the normal time.  Indeed, some pregnancies can last 43 weeks.  The tribunal’s approach to this matter assumed that 40 weeks was the maximum.

14. According to its reasons the tribunal said some things during the hearing that may have misled the applicant.  The tribunal said in its reasons that it discussed with the applicant and his representative in the hearing that if the date of conception of the child was approximately the date of application the tribunal would consider this may amount to a compelling reason in this particular case.  The material before the court does not include the delegate's decision.  It only includes the tribunal's decision. 

15. No court book was provided in accordance with the usual practice in relation to show cause matters.  The tribunal’s reasons do not specify precisely what the delegate’s reasons were for rejecting the application.  The tribunal's reasons merely say that the delegate found the applicant failed to satisfy the requirements of sub-cl.820.211.  It is possible that, if the tribunal had not said that it would regard the circumstance that the date of conception was approximately the date of application as a compelling reason, then the applicant might have sought leave to adduce further evidence.

16. It is obviously very difficult to establish with certainty the date of a child's conception. However, there may have been an ultrasound conducted early in the pregnancy which would have led to an estimated due date.  It is possible that such an item of evidence could have been made available if the tribunal had not said that it would accept that if the date of conception of the child was approximately the date of application it would consider that to be a compelling reason. 

17. I note that the tribunal also said that it discussed with the applicant’s representative that if the date of conception was outside the 38 week period of gestation, the tribunal was unlikely to be satisfied that the birth of the child arose out of circumstances that existed at the time of application.  However, the earlier statement can perhaps be seen as prevailing over the latter. 

18. I note the submissions of the respondent’s solicitor that it was for the applicant to provide such evidence as he wished. However, in view of the tribunal’s potentially misleading statement during the hearing, I am concerned that the applicant may not have been given natural justice. 

19. Evidence of the delegate’s decision may shed light on this matter. As the matter stands, I do not consider that this case reaches the level where I cannot be satisfied that an arguable case for relief has been raised. 

20. I also note that there are time of decision criteria which the applicant may well have satisfied.  Under cl.820.221 of sch.2 of the regulations, the applicant was required to either continue to meet the time of application criteria or meet the requirements of sub-cls.2 or 3.

21. Subclause 3 required that the applicant would have continued to meet the time of application criteria except that the relationship between him and the sponsor had ceased and one or the other of paras. (i) or (ii) applied.  The second of those included that the applicant had formal maintenance obligations in respect of the child.  The applicant said, and the tribunal appears to have accepted, that he had been paying child support.  There is a record in the material provided by the applicant that shows a child support account that supports the view that the applicant would meet the time of decision criteria. Consequently, if there were some error by the tribunal in relation to the handling of the period of gestation, there may be some utility in remitting the matter to the tribunal.

22. In the circumstances, I am not satisfied that the applicant has failed to raise an arguable case for relief.  I consider that the matter should be listed for a final hearing, and a court book with full material should be provided to the court.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  5 October 2015