KUMAR v Minister for Immigration

[2015] FCCA 2081

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2081

Catchwords:
MIGRATION – Application for judicial review – no particularised grounds of complaint – impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: AJAY KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1870 of 2014

Judgment of: Judge McGuire

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Melbourne

Delivered on: 28 July 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Mr Priest

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to amend the Second Respondent’s name to the Administrative Appeals Tribunal.

2. The Application filed on 15 September 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1870 of 2014

AJAY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. This is an application for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made 15 September 2014 affirming a decision of the Minister’s Delegate refusing to grant the applicant a Partner (Temporary) (Class UK) visa (“the visa”).

2. The applicant appears in person this day and is assisted by an interpreter. The interpreter confirmed before the commencement of the hearing that there is mutual understanding.

3. I acknowledge that English is not the Applicant’s first language and obviously there are some complexities at law that he has had to deal with.

4. The application filed 15 September 2014 appears to have been prepared by the applicant himself and raises three grounds of complaint as follows:

   1. I had a genuine relationship so I need a chance to prove it.

   2. It is emotionally and financially for us to survive so please grant your kind consideration.

   3. Currently I and my wife are in extreme depression which might lead us to grave consequences.

5. The application is not particularised as to an alleged jurisdictional error. The applicant has not provided written submissions pursuant to the orders and directions of the Registrar made 3 December 2014 but leave was given to the applicant to make some oral submissions in relation to his application today.

Background.

1. The applicant is from India. He first arrived in Australia in April 2009 on a subclass 572 visa as a dependant on his former wife’s student visa. That relationship ended in April 2010 and the applicant’s visa was consequently cancelled on 16 April 2010. There followed two applications for protection visas on 1 August 2011 and 3 October 2011, both deemed invalid. On 10 November 2011 the applicant submitted a third application for a protection visa of which was refused by the Department and subsequently that determination was affirmed by the Refugee Review Tribunal. It appears that the applicant has been in this country on a bridging visa consistent with that chronology.

2. The applicant met a Ms Sylvia McGrath in June 2012. they married on 24 January 2013 and since their marriage they have lived in the Melbourne suburb of Airport West.

3. The current application for a visa was made on 10 May 2013.

4. I have before me helpful written submissions from Counsel for the first respondent who submits that firstly, the only subclass of the Class U K visa that existed at the relevant time was a subclass 820. The criteria for the grant of that subclass visa are contained in item 820 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Those criteria require the applicant to be the spouse of an Australian citizen and to satisfy criteria 3001, 3003 and 3004 in the schedule 3.

5. Significantly criterion 3001 required the visa application to be made within 28 days of the expiry of the applicant’s last held visa. The applicant did not qualify under this criterion given that the application was made in excess of three years after the cancelation of his previous visa.

6. The application before the Tribunal, given that that criterion was not satisfied, then turns on the discretion in the Tribunal to consider whether there are compelling circumstances so as to waive the requirements of criterion 3001.

7. The applicant appeared before the Tribunal. He gave oral and documentary evidence. The applicant argued the following compelling circumstances argument summarised as:

   ·Firstly, the applicant argued that he did not satisfy the time limits previously referred to in these reasons due to some improper conduct from his former Migration Agent.

   ·Secondly, the applicant argued that the needs of his wife and her dependent child and specific disabilities are such that he is effectively their carer.

   ·Thirdly, the applicant alleged a fear of harm on return to India at the hands of his former wife’s parents.

   ·Finally, he argued that he has no immediate background circumstances or ties in India such that he should be entitled to remain as per his preference in Australia.

8. In my view the Tribunal extended proper procedural fairness, on my reading of the decision, to the applicant. The Tribunal raised concerns as to inconsistencies of the applicant’s evidence with respect to each of the four grounds that he argues in relation to compelling circumstances.

9. From my reading of the reasons the Tribunal, in some detail, specifically engaged each of the matters raised by the applicant in respect of his compelling circumstances arguments.

Conclusion.

1. Matters of credibility and determination of fact are issues for the Tribunal and not for this Court. In his oral submissions today it was clear that the applicant is aggrieved with the determination of the Tribunal but despite my invitation, and as I have said, in not taking up the orders and directions of the Registrar, the applicant has again not particularised any jurisdictional error in the Tribunal. My reading of the grounds of his application and corroborated by his oral submissions today make it clear that the applicant is seeking yet another merits review on his application. That is not the function of this Court and in my view the application will consequently be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  4 September 2015