KUMAR v Minister for Immigration

[2015] FCCA 1385

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1385

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (class UK) visa – failure to attend Tribunal hearing – no jurisdictional error – application dismissed.

Legislation: 
Migration Act 1958, ss.360, 360A, 476

Applicant: SANJEEV KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 353 of 2014

Judgment of: Judge Street

Hearing date: 20 May 2015

Date of Last Submission: 20 May 2015

Delivered at: Adelaide

Delivered on: 20 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms V. Greenslade
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADG 353 of 2014

SANJEEV KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision the Tribunal made on 11 August 2014 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (class UK) visa. The application identifies the following ground:

   I feel that I was not able to attend the MRT hearing hence I was not able to put my case up to MRT officer.

2. That ground patently is deficient in identifying any jurisdictional error. 

3. This is a case where it is clear that the applicant was sent a letter in response to a request for a postponement of a hearing date in compliance with a statutory regime notifying the applicant on 17 June 2014 of a hearing date on 8 August 2014.  The applicant failed to attend and no response was received by the Tribunal to the notification of hearing and there is no suggestion that the applicant did not receive the notification of hearing letter and there is no suggestion that the letter was not sent to the correct address identified in the application for review. 

4. It was in those circumstances, the Tribunal was entitled to decide to proceed to determine the review and it cannot be said that the decision of the Tribunal to proceed to determine the review lacks an evident and intelligible justification or lacks proportionality in the circumstances identified. 

5. The applicant applied for the visa on 22 April 2013 which was refused by the delegate on 19 July 2013.  The delegate identified that the applicant failed to meet the requirements of sub clause 820.211(2), (2a), (3), (4), (5), (6), (7), (8), and (9) and therefore failed to satisfy the requirements of subclause 820.211.  The delegate was accordingly not satisfied that the applicant met subclause 820.211 and refused the application upon finding that the applicant did not meet the criteria for a Partner (Temporary) (class UK) (subclass 820) visa. 

6. There is no evidence explaining why the applicant failed to attend at the hearing and it is clear from the Tribunal’s reasons that the earlier intended hearing was postponed at the request of the applicant.  The Tribunal identified that the applicant entered Australia under subclass 573 visa on 30 July 2008 and which ceased on 13 October 2010.  The Tribunal identified the applicant’s migration history.  The Tribunal noted that the delegate did not accept that there were compelling reasons for waiver of the schedule 3 requirements and, on that basis, the application for a spouse visa was refused.  It was in those circumstances the Tribunal said:

   27. In light of the applicant’s failure to attend two hearings at the Tribunal and because he has not provided any further documentary evidence of the relationship, the Tribunal is unable to make many findings beyond those of the delegate.

7. The Tribunal made the following relevant findings:

   36. The Tribunal has had consideration to the financial aspects of the relationship. There is no evidence of joint ownership of assets beyond a Bank SA bank account held in both names established in March 2012. The deposits into that account are cash deposits and there are miscellaneous withdrawals and purchases shown.  There is no evidence of rent or utilities paid from that account and no evidence of salary or Centrelink deposits made.

   37. There is no evidence before the Tribunal of joint liabilities and limited evidence, made by way of statements, indicating any pooling of financial resources or sharing of day-to-day household expenses. Finally, there is no evidence of any legal obligations owed by one party to the other.

   …

   42. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of application or decision.

   43. Therefore the applicant does not meet cl.820.211 or cl.820.221.  There is no evidence before the Tribunal that the applicant meets any of the alternative criteria in c.820.211(7), 820.211(8), 820.211(9), 820.221(2), 820.221(3) (death, family violence, child exceptions).

   …

   45. The Tribunal accepts that both parties were at least 18 years old at the time of application, but the Tribunal is not satisfied, on the basis of the above outlined evidence that the relationship claimed existed for at least 12 months before the visa application.  Further, there is no evidence before the Tribunal that the 12 month requirement has been exempted in relation to the applicant by r.2.03A(4),(5).  Finally, the applicant has not established compelling and compassionate circumstances for the grant of the visa based on the evidence presented.

   46. For these reasons the Tribunal is not satisfied that the applicant meets the additional criteria prescribed in r.2.03A(3).

   47. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

   48. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

   49. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

   50. The applicant last held a substantive visa, being his student visa on 13 October 2010.  Since that time, he has held a series of Bridging visas. He lodged this visa applicant on 22 April 2013, more than two-and-a-half years later.

   51. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

8. It was in those circumstances the Tribunal turned to whether there were compelling reasons and relevantly found:

   54.    As noted, while there has been some evidence presented relating to compelling reasons by way of a report of a mental health professional, apparently based on assertions made by the applicant or the sponsor, that evidence was unable to be tested.  In the circumstances, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

9. The findings of the Tribunal were clearly open. The Tribunal complied with the obligations under s.360 and 360A. The Tribunal was under no obligation to communicate with the applicant and inquire as to why he did not attend the adjourned hearing and there was no jurisdictional error by the Tribunal in deciding to proceed with the determination of the review. The application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  26 May 2015