Kumar v Minister for Immigration

[2015] FCCA 902

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 902

Catchwords:
MIGRATION – Refugee Review Tribunal – Partner (Temporary) (Class UK) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court R.s 2001, r.13.10

Migration Act 1958, ss.360, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: BALVEER KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 699 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent:

Ms A. Carr

DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 699 of 2015

BALVEER 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 this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 18 February 2015 affirming the decision of the delegate not the grant the applicant a Partner (Temporary) (Class UK) visa. 

2. The application identified the following grounds:

   1. The Tribunal breached section 360 of the Act and / or been procedurally unfair in failing to provide the Applicant to opportunity to have the Sponsor (Wife) be at the hearing by telephone.

   Particulars

   The Applicants have requested the Tribunal in December 2014 hearing to permit the Sponsor (Wife) to give evidence / present arguments by telephone owing to the Sponsor (Wife’s fear of travel from her residence.

   The Tribunal was procedurally unfair by not permitting to Sponsor (Wife) to give evidence / present arguments over telephone.

   The Tribunal breached s 360 of the Act in failing to permit applicant’s Sponsor (Wife) to give and present arguments.

   The Tribunal committed jurisdictional error in relation to failure to allow Sponsor (Wife) to give evidence / present at the adjourned hearing.

   2. The Tribunal committed jurisdictional error when it failed to consider whether the Applicant and the Sponsor (Wife) were living together or separate and apart.

   Particulars

   The Tribunal erred by applying an incorrect test – the Tribunal failed to apply whether the Applicant and Sponsor (Wife) were living separately and apart.

   The Tribunal should have found that the delegate misapplied the test.

   3. The Tribunal committed jurisdictional error in application of the test in determining whether there was spousal relationship under the Migration Act.

   Particulars

   The Tribunal erring in considering the additional evidence.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court identified to the applicant that it was concerned that the application fails to disclose an arguable jurisdictional error and that the proceedings appear doomed to failure and the Court was minded to consider exercising its summary jurisdiction. 

5. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

6. The applicant said that he needed time and that he needed to go and engage a lawyer.  The Court indicated that there is no utility in granting an adjournment if the proceedings are doomed to failure.  For the reasons in this decision, the Court is clearly satisfied that the proceedings are doomed to failure and that there is no utility in granting an adjournment, and that to do so will only add to the costs to the parties and utilise limited Court time. 

7. The applicant does not have a right of appeal to this Court.  The applicant is seeking a Constitutional writ, and the Court is entitled to expect that the application will identify an arguable jurisdictional error or that there will be identified from the first return date an arguable jurisdictional error that warrants this Court entertaining the matter.  It is not appropriate for this Court to entertain proceedings that have no reasonable prospect of success. 

8. In relation to ground 1, it is clear that the applicant attended the first hearing before the Tribunal and did not attend the second scheduled hearing. There is no substance in the allegation of any breach of s.360 by the Tribunal. Nor is there any substance in the suggestion that it was procedurally unfair for the Tribunal to proceed when the applicant failed to attend the second hearing. It was open to the Tribunal to proceed with its review and make its decision where the applicant failed to attend.

9. Grounds 2 and 3 are an impermissible challenge to findings of fact made by the Tribunal and have no reasonable prospect of success.  There is no arguable jurisdictional error disclosed in the application.  Nothing said by the applicant identifies any arguable jurisdictional error. 

10. The applicant arrived in Australia under a Subclass 571 student visa that ceased on 15 March 2012.  The applicant applied for a Partner (Temporary) (Class UK) visa on 11 September 2013, which was refused by the delegate on 16 December 2013 because he was not satisfied that Mr Kumar and Ms Gee were in a genuine spousal relationship.  Mr Kumar appeared by video conference from Canberra before the Tribunal on 16 December 2014 to give evidence and present arguments, and the hearing was held with the benefit of an interpreter.  Before the hearing the Tribunal had received submissions dated 24 November 2014 from Mr Kumar’s representative.  The Tribunal noted with concern that Ms Gee was not present at the hearing in Canberra.  Mr Kumar told the Tribunal that he was still in a relationship, and the Tribunal identified that it was concerned as to the genuineness of that relationship. 

11. It was in those circumstances that the Tribunal decided to adjourn the hearing in order to permit Mr Kumar to adduce evidence from Ms Gee.  The Tribunal identified to Mr Kumar’s authorised representative the hearing would resume on 17 February 2015.  Messages were sent to remind Mr Kumar of the meeting.  On 11 February 2015, the registry contacted Mr Kumar’s authorised recipient reminding the applicant’s representative of the intended hearing.  Further messages were sent to Mr Kumar on 16 February by SMS, and he did not appear at the scheduled hearing on 17 February 2015.  Attempts were made to ring Mr Kumar on the day, but his mobile was discovered to have been terminated.  No contact was made with the Tribunal by the close of business on 17 February 2015, and it was in those circumstances the Tribunal decided to proceed with the conduct of its review without taking any further action. 

12. It was open to the Tribunal to do so, in the circumstances identified.  There is no jurisdictional error in the Tribunal deciding to proceed to conduct the review in the circumstances.  Relevantly, the Tribunal found:

    23. Mr Kumar and Ms Gee did not attend the adjourned hearing on 17 February 2015. The tribunal has been unable to contact Mr Kumar and it also appears that Mr Kumar has not contacted his migration agent. Mr Kumar has not advised of any change in his contact details.

    24. There is evidence before the tribunal that Mr Kumar and Ms Gee shared the same address at least up until 2014. There is also evidence that in the past Mr Kumar and Ms Gee shared social activities. Mr Kumar also told the tribunal on 16 December 2014 that he was in a spousal relationship with Ms Gee.

    25. However given Mr Kumar and Ms Gee did not attend the hearing scheduled for 17 February 2015, the tribunal has been unable to test Mr Kumar's claims concerning the relationship. Furthermore there is no evidence before the tribunal concerning the financial arrangements as at the time of decision, the nature of any household as at the time of the decision, the social aspects as at the time of decision and crucially the nature of any commitment as at the time of the decision.

    27. Therefore Mr Kumar does not meet cl.820.221(1). Furthermore Mr Kumar has not claimed, and there is no evidence before the tribunal, that he meets the alternative criteria in cl.820.221(2) or 820.221(3) are met.

13. The findings made by the Tribunal were clearly open.  The findings cannot be said to lack evident and intelligible justification.  The application is clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospects of success.  The proceedings are summarily dismissed.

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

Associate: 

Date:  13 April 2015