Kumar v Minister for Immigration and Border Protection
[2021] FCCA 1336
•21 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kumar v Minister for Immigration and Border Protection [2021] FCCA 1336
File number(s): MLG 1215 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 21 June 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal - Partner (Temporary) (Class UK) visa – review of delegate’s decision - whether the Tribunal failed to consider a substantial and clearly articulated submission – whether a compelling reason existed – no jurisdictional error established – Application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Part 820 of Schedule 2, cl 820.211(2)(d)(ii) of Schedule 2, cl 3001 of Schedule 3
Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026
Singh v Minister for Home Affairs [2020] FCAFC 7
Number of paragraphs: 30 Date of hearing: 27 May 2021 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Lawson Bayley Counsel for the Respondents: Ms Campbell Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1215 of 2017 BETWEEN: BINDER KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
21 JUNE 2021
THE COURT ORDERS THAT:
1.The Application filed on 8 June 2017 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal ('Tribunal') on 8 May 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Indian national. He applied for the visa on 11 May 2015.
The criteria for the grant of the visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) ('Regulations').
As part of the application for the visa, the Applicant claimed to have met his sponsor in April 2014 and to have commenced a relationship with her on 5 August 2014 (Court Book 2, 10, 17-18).
On 5 November 2015, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy clause 3001 of Schedule 3 to the Regulations and further, the delegate was not satisfied there were 'compelling reasons' within the meaning of clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations, for not applying the Schedule 3 criteria.
On 21 November 2015, the Applicant applied to the Tribunal for review of the delegate's decision.
On 18 April 2017, the Applicant's legal representative submitted a pre-hearing submission to the Tribunal and evidence in support of the application. The following submissions among others, were made.
First:
I am advised that the applicant and the Sponsor have co-habited at 13 Sputnik Court Whittington since 5 August 2014. This relationship is now more than 2 years and 8 months at time of writing.
Second:
In summary I believe that the Applicant would have met all the criteria for the visa grant in this application apart from the Schedule 3 criteria, on the last day they held a substantive visa. I wish also to stress that the applicant and the Sponsor have been in a long term and continuing relationship since August 2014.
I refer to the submissions above as the ‘Claim’.
On 19 April 2017, the Applicant submitted further evidence (Court Book 270).
On 20 April 2017, the Applicant attended a hearing before the Tribunal. On 8 May 2017, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
The Applicant commenced proceedings in this Court by filing an application for review and affidavit on 8 June 2017. Orders were subsequently made for the conduct of the matter.
An Amended Application ('Application') was ultimately filed by the Applicant along with written submissions. The Minister filed written submissions and also filed a Court Book. I have considered the Application, written submissions of the parties and the Court Book.
THE APPLICATION
The Application contains a single ground of review which is as follows:
1.The Tribunal failed to complete its jurisdiction by failing to consider a substantial and clearly articulated submission.
Particulars
a)It was a substantial and clearly articulated submission that the relationship between the applicant and his sponsor was a long-standing one of two years or longer, and that this was a compelling reason not to apply the Schedule 3 criteria (the claim).
b) The Tribunal failed to consider the claim.
The issue in dispute in this case is a narrow one:
(a)The parties agree the issue before the Tribunal was whether there existed 'compelling reasons' for not applying the Schedule 3 criteria as contemplated by clause 820.211(2)(d)(ii) of the Regulations;
(b)the Minister accepts that the Claim was made and was clearly articulated;
(c)the Minister accepts that the length of a relationship can, on its own, be a 'compelling reason' for the purposes of not applying the Schedule 3 criteria;
(d)the Applicant accepts the Tribunal assumed that the Applicant and the sponsor 'might' be partners in a domestic sense.
While there is much common ground, the parties differ as to whether the Claim was considered by the Tribunal. The Applicant contends the Claim was a substantial one that was not considered. The Minister disagrees. The Minister further contends that if the Tribunal made an error, it was not a material error.
I did not understand there to be a dispute between the parties as to the principles that are to be applied in relation to the present matter, though each emphasised different aspects of the principles from the cases. The Applicant relied on the statement at paragraph [18] in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503. The Minister emphasised the comments of the Full Court of the Federal Court of Australia in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] and [63], as well as the statements of the Full Court of the Federal Court of Australia in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [47].
There is little doubt that the length of a relationship can be a 'compelling reason' for waiving the Schedule 3 criteria. So much is clear from the Explanatory Statement to the Migration Regulations (Amendment) 1996 No. 75 (Cth). This regulation introduced clause 820.211(2)(d)(ii) in its present form. The Explanatory Statement, at paragraph 10.1 provided as follows:
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:
- where there are Australian-citizen children from the relationship; or
- where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
The significance of the Explanatory Statement is a matter that has attracted some comment: see the comment of Griffiths J in Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 ('Chhetri') at [37]. I also note and accept the comments of Logan J in Singh v Minister for Home Affairs [2020] FCAFC 7, where Logan J at [11] commented that:
… a visa applicant is entitled reasonably to assume that a regulation will be administered in accordance with a statement given in a related explanatory statement.
In light of these matters, the Minister's acknowledgement that the length of a relationship may on its own constitute a 'compelling reason' is appropriate. Equally, however, as noted by Griffiths J in Chhetri at [38], the Tribunal is not confined to considering only the matters referred to in the Explanatory Memorandum, but rather those matters are to be weighed with other relevant considerations.
It is first necessary to note that there are three aspects to the Claim. First, that the Applicant and the sponsor have 'co-habited' (sic) since 5 August 2014. Second, that the relationship is now 'more than two years and eight months'. Third, that the relationship is 'a long-term and continuing' one.
There is little doubt that the Tribunal was acutely aware that the relationship between the Applicant and the sponsor is a 'continuing one'. The decision is predicated on that basis with the Tribunal examining what the effect on the sponsor might be if the Applicant is required to apply for the visa offshore.
As to whether the length of the relationship and the fact that the Applicant and sponsor were living together, paragraph [28] of the reasons provides as follows:
28.The tribunal has considered the marriage certificate that records the applicant married K Zahra on 21 May 2014. The tribunal accepts the relationship between K Zahra and the applicant broke down, and subsequently the applicant moved into the home of the sponsor. In the sponsor’s statement she records she met the applicant in August 2014, and he first moved into her home on 3 March 2015. The tribunal accepts the applicant has moved into the sponsor’s home, and that since he moved into the home of the sponsor he has assisted her in the home with housework and gardening tasks, and driven her to some appointments. The tribunal is satisfied that the sponsor managed these tasks without the applicant for six years after she suffered the back injury.
Further, paragraph [33] of the reasons provides as follows:
33.The tribunal has considered there is no psychological report that is evidence of the sponsor’s psychological or emotional dependence upon the applicant. The tribunal has considered the sponsor’s evidence that she depends on the applicant for support. The tribunal has considered the sponsor’s statutory declaration dated 19 April 2017 in which she declares he is caring, supportive and genuine. The tribunal has considered the representative’s submission which states the applicant provides care and support, and that leaving the sponsor on her own in Australia would affect her emotionally and psychologically. There is little evidence before the tribunal that the sponsor is more psychologically dependent upon the applicant or would be more seriously emotionally affected by the departure of the applicant, than other sponsors who have been with their partners for a similar period of time. The tribunal is not satisfied that the sponsor is so psychologically dependent upon the applicant that if he was required to lodge the application offshore, the effect upon the sponsor of not having the applicant to support her would amount to compelling reasons for not applying the Schedule 3 criteria.
When these paragraphs are considered, a number of things become apparent. The Tribunal expressly states that it is aware the Applicant and the sponsor have lived together since 3 March 2015. Further, the Tribunal accepted that they are domestic partners in a relationship of greater than two years when it compared the Applicant and the sponsor to others 'who have been with their partners for a similar period of time'. Finally, it is clear that the Tribunal is aware of the period of time that the Applicant and sponsor have been in a relationship.
The Applicant contends that the matters to which I have referred above does not mean that the Tribunal had confronted and engaged with the Claim. The Applicant contends, rather, that what is set out in paragraphs [28] and [33] is simply a recognition of the evidence underlying the submission.
I have considered the Applicant's submission closely having regard to the reasons set out by the Tribunal. A review of the reasons discloses that the Tribunal carefully examined the nature of the relationship between the Applicant and the sponsor. For example, at paragraph [18] of the reasons, the Tribunal records the evidence of the sponsor that the Applicant 'does the strenuous household chores' and also records what used to occur 'before the applicant lived at her home'. At paragraph [23] the Tribunal records the evidence of a witness that the 'applicant was a tremendous help to the sponsor, and he does the housework and mows the lawn'. At paragraph [28], the Tribunal accepts the Applicant is living with the sponsor, that he assists her in the home with housework and gardening tasks, and has driven her to some appointments. At paragraph [30], the Tribunal notes evidence that the 'applicant has been providing manual assistance'. At paragraph [31], the Tribunal notes evidence that the Applicant assists the sponsor with the clean-up if she has an accident. Then, at paragraph [33] there is the express acknowledgment of the 'period of time' the Applicant and the sponsor have been in a relationship, and the comparison of the length of their relationship to others.
The matters I have referred to above demonstrate that the Tribunal considered closely the various aspects of the relationship between the Applicant and the sponsor. Importantly, it considered those aspects of the relationship to which I have referred in a context where it was aware (because it expressly said so) that the Applicant had moved into the sponsor's home in March 2015, and that the Applicant and the sponsor were 'partners'. It cannot be said, in my view, that there was a failure by the Applicant to engage with and consider the Claim when these matters are considered.
When the reasons of the Tribunal are read in context, I am satisfied that the Tribunal not only understood the Claim and its significance, but dealt with it.
For the above reasons, the Application must be dismissed.
The Applicant has been wholly unsuccessful. The Minister seeks costs in the amount of $5,000. In the circumstances of this case, I regard it as appropriate to make the costs orders sought by the Minister.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 21 June 2021
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