KUMAR v Minister for Immigration

[2015] FCCA 1078

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1078

Catchwords:
MIGRATION – Application for show cause hearing – no arguable case – application for judicial review dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

Legislation:

Migration Act 1958 (Cth), s.5F

Federal Circuit Court Rules 2001, r.44.12(1)(a)
Migration Regulations 1994, cls.801.221, 801.221(2)(b), 801.221(2)(c),
801.221(2A), (3), (4), (5), (6) or (8)

Applicant: RAJ KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1990 of 2014

Judgment of: Judge Jones

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Melbourne

Delivered on: 7 May 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 the application filed 1 October 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1990 of 2014

RAJ KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent seeks a show cause hearing, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the application filed by the applicant, on 1 October 2014, has not raised an arguable case for the relief claimed and that the proceeding should therefore be dismissed.

2. The application filed by the applicant is for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 4 September 2014 affirming a decision of a delegate of the First Respondent not to grant the applicant a Partner (Residence) (Class BS) visa (“the visa”).

3. I explained to the applicant, who was self represented, the nature of the application being made by the respondent this morning and that the issue for the Court was whether or not his/her application raised an arguable case for the relief claimed. I also attempted to explain to the applicant the nature of these proceedings and the distinction between the role and power of the Minister and his officers, the Tribunal and the Court. I sought to explain to the applicant, these proceedings could not be concerned with the merits of his claim; that is whether or not he should be granted or refused the visa. I explained I could only be properly concerned with the question of whether, in coming to its decision, the Tribunal fell into jurisdictional error (“made a serious legal mistake”). The applicant was assisted by an interpreter in the Punjabi and English languages.

Background

1. The following background facts are taken from the decision of the Tribunal.

2. The applicant is a citizen of India who first arrived in Australia in April 2008 on a Subclass 676 Tourist visa, and subsequently remained in Australia as an unlawful non-citizen. On 5 April 2011, he married an Australian citizen. On 2 May 2011, he applied to the Department of Immigration and Border Protection (“the Department”) for a Partner (Provisional) (Class UK) visa, and a Partner (Residence) (Class BS) visa. The applicant was sponsored in respect of his visa applications by Sofia Anne Ward (“the sponsor”). On 20 February 2012, the applicant was granted a Partner (Provisional) (Class UK) visa.

3. On 22 February 2012, the Department received an anonymous allegation to the effect that the marriage was contrived and had been entered into by the sponsor in return for payment.

4. On 20 July 2012, the sponsor withdrew her sponsorship in writing and confirmed at interview that the marriage was contrived, that she had been paid $5,000 to marry the applicant and that they did not live together. On the same day, the applicant was also interviewed, and the sponsor’s allegation was put to him, but he maintained that the marriage was genuine.

5. On 22 February 2013, the Department invited the applicant to comment on the contradictory information provided by the sponsor and the applicant, however, no response was received.

6. On 9 May 2013, a delegate refused to grant the applicant the visa on the basis that the applicant did not meet cl.801.22(2) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), a time of decision criterion, as the delegate was not satisfied that the applicant and sponsor were in a spousal relationship.

7. On 31 May 2013, the applicant applied for review of the delegate’s decision. The applicant appeared before the Tribunal on 14 August 2014 to give evidence and present arguments, assisted by an interpreter and represented by a migration agent.

Legislative Framework

1. The relevant subclass visa is Subclass 801 (Partner). The criteria for the grant of the visa is set out in Part 801 of Schedule 2 to the Regulations. The criteria in cl.801.221 of Schedule 2 to the Regulations, which is a time of decision criteria, relevantly provided:

   801.221

   (1)The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

   (2)An applicant meets the requirements of this subclause if:

   (a)  the applicant if the holder of a Subclass 820 visa; and

   (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

   (i)   the sponsoring partner; or

   (ii)  the Australian citizen,  Australian permanent resident ot eligible New Zealand citizen who sponsored the applicant for that visa; and

   (c) the applicant is the spouse or de fact partner of the sponsoring partner; and

   (d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

2. Section 5F of the Migration Act1958 (“the Act”) provides:

   (1)For the purposes of this Act, a person in 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 provisions in relation to the determination for different purposes whether one or more of those conditions exist.

Tribunal Decision

1. The Tribunal set out (at [12]) the primary criteria to be satisfied at the time of decision. The Tribunal proceeded to consider whether the applicant continued to be sponsored by the sponsor at the time of the decision (as required by cl.801.221(2)(b)) and also whether the applicant was the spouse of the sponsoring partner at the time of the decision (as required by cl.801.221(2)(c)).

2. The Tribunal found at [14] that the sponsor had withdrawn her sponsorship of the applicant in writing on 20 July 2012, and concluded that the applicant did not satisfy cl.801.221(2)(b) as he was no longer sponsored by the sponsor. The Tribunal stated:

   “The Tribunal was cognisant at [12] that the primary criteria to be satisfied at the time of decision are set out in c. 801.221. The Tribunal proceeded to consider whether the applicant continued to be sponsored by the sponsor at the time of decision (as required by cl 801.221(2)(b)) and also whether the applicant was the spouse of the sponsoring partner at the time of decision (as required by cl 801.221(2)(c)).”

3. On this basis, the Tribunal concluded that the applicant, as at the date of the Tribunal decision, was no longer the spouse of the sponsor, and was unable to meet the mandatory requirements of cl.801.221(2)(c) that the applicant be the spouse or de facto partner of the sponsoring partner.

4. The Tribunal reasoned that only cl.801.221(2) was relevant to the applicant’s circumstances, as the applicant has not advanced any evidence in respect of cls.801.221(2A), (3), (4), (5), (6) or (8). These criteria are relevant where the sponsor has either died, there has been an allegation of family violence, the relationship has ceased but there is a child of the relationship, or the Class UK visa was granted in particular circumstances.

Grounds of Application

1. The applicant’s grounds of review are as follows:

   1.I think she was confused in my documents. She did not check my document carefully.

   2.They said to me somebody did my complaint but I know who did my complaint. According to me, he told everything wrong/lie. I did not married (sic) fake with (Sofia Anne Ward). It was real marriage.

   3.At the moment I did not get divorced from my wife (Sofia Anne Ward).

2. The grounds of the application do not identify proper grounds for review, and appear to take issue with the Tribunal’s summary of an allegation received by the Department that the applicant and sponsor were not in a genuine relationship.

3. During the proceedings I asked the applicant to explain what he meant by his grounds of review and why he had made his application for judicial review.

4. The applicant stated that that he had asked the Tribunal to talk to the sponsor but they did not speak to her. He told the Tribunal the sponsor was living with him. He denied that he paid $5000 to the sponsor. In particular, he denied that he informed the Tribunal that he had separated the year before the hearing. He submitted that he had told the Tribunal that they had separated a year before the Tribunal hearing but only for two weeks, because the sponsor’s father was ill and she was looking after him.

5. Generally, if an applicant disputes the record of evidence given at a Tribunal hearing set down in the decision record, the applicant would be expected to produce a transcript of the proceedings and an affidavit in this respect. However, as the applicant was self represented and I was informed that the proceedings were very short, I decided to make an order that the Minister provide the Court and the applicant with a disc recording the proceedings. I also made orders that the applicant file and serve any written submissions that he wished and that the Minister file and serve any submissions it wished to in response.

6. On 24 March 2015, the Minister filed and served a disc on which a copy of the audio recording of the Tribunal hearing attended by the applicant on 14 August 2014 has been reproduced.

7. The applicant did not file any written submissions.

8. I have listened to the disc audio recording of the proceedings before the Tribunal on 14 August 2014 in my Chambers. Relevantly, when asked whether he was in a relationship with the sponsor, the applicant replied “No”.  He accepted that he had lost his sponsor. When asked by the Tribunal member when he separated from the sponsor, he answered “last year”. He was asked when in the previous year he had separated but was unable to provide that information. He did not, as he submitted in the proceedings before me, qualify that statement to the Tribunal by saying that it was only for a period of two weeks. The applicant told the Tribunal member that the reason they separated was because of misunderstandings regarding household expenses as he did not have work rights at the time. He stated that that was the reason the sponsor moved to her mother’s address who he said was sick at the time. He went on to say that after that he went to visit her at her mother’s house once or twice but she said she did not want to be with him. At the conclusion of this explanation, the Tribunal member then confirmed with the applicant that he was married and lived with the sponsor from April 2011 to 2013. The applicant responded “yes” without qualification.

Consideration

1. The applicant has not challenged the finding of the Tribunal that the sponsor had withdrawn her sponsorship of him, but says the marriage was genuine at the time he entered into it. He denies that he made a payment of $5,000.00 to the sponsor. Whether the applicant thought that the marriage was real at the time he entered into it does not affect the Tribunal’s conclusion that he was no longer sponsored by the sponsor at the time of the decision.

2. As the sponsor withdrew her sponsorship of the applicant in writing on 20 July 2012, the applicant cannot meet the mandatory requirement that the he be sponsored: cl.801.221(2)(b) of Schedule 2 to the Regulation.

3. I am satisfied that based on the applicant’s own evidence before the Tribunal, the applicant was not in a married relationship with the sponsor at the time of decision as the relationship was not continuing and they did not live together, at the time of decision.

4. Pursuant to s.5F(2)(c) and (d), the applicant was not in a married relationship with the sponsor, and therefore could not meet the definition of a spouse under the Act. As a consequence, the applicant could not meet the mandatory requirement of cl.801.221(2)(c) of Schedule 2 to the Regulations that at the time of decision the applicant be the spouse or de facto partner of the sponsoring partner, as defined in s.5.F of the Act.

5. I agree with the Minister’s submission that the Tribunal was correct to affirm the decision of the delegate, because the applicant was no longer sponsored and was not the spouse of the sponsoring partner at the time of the decision.

6. The first respondent contends that the Tribunal has complied with its procedural fairness obligations, noting that the Tribunal based its decision on the evidence of the applicant at the Tribunal hearing. The applicant acknowledged that he no longer has a sponsor and conceded that he and the sponsor’s relationship ended the year before.

7. I am satisfied that the application does not identify a jurisdictional error, and does not have an arguable case for relief.

Conclusion

1. For the reasons set out above, the application for judicial review is dismissed pursuant to rule 44.12(1)(a) with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 7 May 2015