Kumar v Minister for Immigration
[2004] FMCA 56
•6 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION | [2004] FMCA 56 |
| MIGRATION – Judicial review of decision of Migration Review Tribunal – Partner (Provisional) (Class UF) Visa Subclass 309 (Spouse) – application dismissed. |
Migration Act 1958 (Cth)
Migration Regulations 1994
| Applicant: | BALJINDER KUMAR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ1219 of 2002 |
| Delivered on: | 6 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 30 January 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $6,000.
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1219 of 2002
| BALJINDER KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Rajwinder Kumur is a female national of India born 6 July 1978. She is the visa applicant. On 10 July 2000 she applied for a Partner (Provisional) (Class UF) Subclass 309 (Spouse) visa on the basis of her marriage to the applicant. That marriage was said to be on the same day as the visa applicant and the applicant met, namely the
28 December 1998. Because the visa applicant was not in Australia, only her husband, as nominator, had standing to seek review of the earlier decision of the delegate by the Migration Review Tribunal (hereinafter the “MRT”) (s.338(5)); s.347(2)(b) of the Migration Act 1958 (Cth) (hereinafter “the Act”).
A delegate of the Minister at the Australian High Commission in Chanakyapuri refused the visa Applicant’s application on the 22 June 2001. On 8 August 2001 the Applicant applied to the MRT for review of that decision. The MRT conducted an oral hearing on 2 October 2002 and on 31 October 2002 affirmed the delegate’s decision. The Applicant made application to this Court on 29 November 2002 and an amended application was filed by him on 30 July 2003. On the hearing of this matter before me the Applicant abandoned his claim as set out in paragraph 3(b) of that amended application. Only the ground in paragraph 3(a) was pursued. That was that:
The MRT concluded that the visa Applicant did not satisfy the criterion of being a spouse of her husband (the Applicant) but formed an opinion the visa Applicant failed to satisfy Reg.1.15A(3)(c) because the Applicant failed to produce adequate photographs of her wedding when at the MRT hearing on 2 October 2002 the MRT member presiding informed the Applicant that there was no need for the Applicant to produce a greater number of photographs of the wedding because it was the nature of the photographs that was in issue whereby the visa Applicant (and the Applicant) were denied a fair hearing.
History
The Applicant arrived in Australia on 28 April 1988 on a visitor visa valid for one month. He was a citizen of India. After arrival in Australia, the Applicant met Ms Barbara Sutherland and on 13 May 1988 he lodged an application asserting that he was her de facto spouse. He ceased residing with her on 20 May 1988. In June 1988, the Applicant met Ms Kelly Terlich. He married her on 29 December 1988. The marriage lasted four weeks. A Decree Nisi was granted on 21 May 1990. On 7 March 1989, the Applicant met Ms Helen Zouroukis and moved in with her on 10 July 1989. He married her on 30 June 1990 and thereafter applied for a Class 309 Visa. In 1990 a daughter (Ms Manju Kumar) was born. The Applicant became an Australian citizen on 22 April 1993. Ms Helen Zouroukis and the Applicant divorced on 3 September 1993. The Applicant then married Ms Mamta Rani in India on 5 June 1995. He sponsored her for a Class 309 Visa in January 1996. The application was approved and she arrived in Australia on 7 June 1996. She divorced the Applicant on 5 June 1998. On 28 December 1998 the Applicant met the visa Applicant. They were married on the same day. The Applicant returned to Australia on 9 February 1999. The Applicant thereafter visited his wife (the visa Applicant) between 29 October 2001 and 17 December 2001 being a period following the primary decision to refuse the application for a spouse visa.
Legislation
The criteria relevant in this matter are as set out in Subclause 309.211 of Schedule 2 of the Migration Regulation 1994 which specifies the criteria to be satisfied at the time of application and subclause 309.22 which specifies the criteria to be satisfied at the time of decision. Regulation 1.15A is also relevant. In determining whether persons are in a married relationship the Minister must have regard to all of the circumstances of the relationship including, in particular, those set out in Regulation 1.15A(3).
Tribunal Findings
The MRT was satisfied that the visa Applicant was the spouse of an Australian citizen in that the Applicant was not prohibited from being a sponsor and that the marriage was recognised as valid for the purposes of the Act (Reg.1.15A(1)(a)(1). However those findings were conditional upon the visa Applicant meeting the definition of ‘spouse’ as defined in Regulation 1.15A. The MRT concluded that the visa Applicant and the review Applicant did not have a relationship that met the requirements of the Regulations. It said
The very brief time between the parties’ first meeting and their marriage is not consistent with mature consideration of the relationship and its obligations. In addition to this the Tribunal notes the relative paucity of correspondence and the fact that the review applicant did not spend the full period of his stay in India with his spouse or avail himself of the later opportunity to travel to visit her when he clearly has the means to do so. There is also the discrepancy between the claimed number of guests at the Gurdwara wedding and what is shown (or not show) in the photographs and what appears to be a highly exaggerated claim over those who attended at the later celebration. Furthermore, the review applicant’s answers to questions over the parties’ future plans only elicited his wishes of having her to cook for him and to assist him with his business.
The MRT concluded the review applicant did not evince a commitment to the relationship.
Consideration
The Applicant did not produce a tape of the hearing before the MRT. Nor did the Applicant seek the respondent put the tape of the proceedings before the court albeit Counsel for the respondent indicated the respondent’s willingness and ability to do so.
The Applicant contended that the decision of the MRT involved a jurisdictional error because the decision was not made in accordance with the rules of natural justice.
In contending that the marriage was genuine, the Applicant (and the visa Applicant) produced photographs of the wedding and reception. He did this in response to the comments of the primary decision-maker that the absence of photographs was “unconvincing”. The photographs were submitted under cover of a letter dated 25 April 2001.
The Applicant contended that the MRT referred to the inadequacy of the photographs as being the reason for finding the ‘social aspects of the relationship’ criteria had not been made out (Reg.1.15(3)(c)). Further, that the Applicant was mislead by the Tribunal by indicating to him that the number of photographs was not important. I reject this contention.
The MRT clearly accepted the wedding took place. It accepted that the Applicant and his wife represented themselves to other people as being married and accepted that in the opinion of their friends and acquaintances, the nature of the relationship was one of husband and wife. Accordingly, the fact that the Tribunal did not receive further photographic material did not lead it to resolve the issue of the social aspects of the relationship against the Applicant.
It is clear from the excerpt of transcript provided by the respondent whom had possession of the tape and was willing for same to be provided to the court that a video was being proffered to the MRT not more photographs as suggested by the Applicant. The production of the video was foreshadowed in the Applicant’s submission, “I have a video of the ceremony, which I will provide to the Tribunal.” The transcript excerpt provided by the Applicant does not clearly refer to a rejection by the MRT of the production of more photographs. The excerpt refers to “it” being by implication the video of the ceremony. Had the Applicant wished the Tribunal to view the video because it showed more people at the ceremony than the photographs showed, it was a matter for the Applicant to put this case to the Tribunal. He did not. However, this was not a significant fact in the reasoning of the MRT.
I reject the contention that the Applicant was mislead. There is no evidence before me of this being the case. There is no evidence that the production of more photos of or a video of the ceremony could have made a difference to the outcome of the hearing. The reason for the Tribunal’s decision was that it considered that the Applicant was not committed to the relationship, primarily because he had had minimal contact with this wife since the wedding. He did not return to see his wife in the two years and four months after the wedding and before the delegate’s decision, although he had the means to do so. He only went back to see his wife after the delegate’s decision highlighted the lack of visits. He spoke by telephone to other people in India more often than he spoke to his wife. He sent her cards written in English although she did not speak English. His future plans in relation to his wife consisted of her cooking for him and helping him in the business. It was these matters that the Tribunal found to be inconsistent with a genuine and continuing marital relationship.
I shall dismiss the application and order the payment of the respondent’s costs by the Applicant.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: T. Jones
Date: 6 February 2004
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