Kumar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 670
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 670
File number(s): SYG 2735 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 9 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal not satisfied there were compelling reasons for not applying Schedule 3 criteria – no point of principle – application dismissed Legislation: Migration Regulations 1994 (Cth) reg 2.05(4), Sch 2 cl 820.211(2)(d), Sch 3 cl 3001 Cases cited: EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1252
Farhat v Minister for Immigration and Border Protection [2018] FCA 93
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 7 April 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Mr M Gao of HWL Ebsworth ORDERS
SYG 2735 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VISHNU VINESH KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
9 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 27 November 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 November 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Partner (Temporary) (class UK) (subclass 820) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) relevantly provided at the time of the Tribunal’s decision:
An applicant meets the requirements of this subclause if:
…
(d) in the case of an applicant who is not the holder of a substantive visa – either:
(i) …; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Criterion 3001 in Schedule 3 to the Regulations requires that an application “is validly made within 28 days after the relevant day” where “the relevant day” is, in circumstances applicable to the applicant’s matter, “the last day when the applicant held a substantive … visa”.
FACTUAL BACKGROUND
On 4 September 2015, the applicant, a citizen of Fiji, arrived in Australia on a tourist visa which ceased on 4 March 2016.
On 20 July 2016, the applicant lodged an application for a subclass 820 partner visa on the basis of his relationship with an Australian citizen (Sponsor).
On 26 February 2019, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(d). The delegate found that the applicant did not satisfy criterion 3001 in Schedule 3 and was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.
On 7 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 19 October 2020, the Tribunal invited the applicant to attend a hearing on 11 November 2020.
On 30 October 2020 (see Tribunal stamp at top of CB 327), the applicant provided to the Tribunal: (CB 327-359) (30 October 2020 Materials)
(a)a letter/submission from the applicant dated 26 October 2020;
(b)a statement from the applicant dated 25 October 2020;
(c)a statement from the Sponsor dated 25 October 2020;
(d)statements from six other persons; and
(e)some additional documents.
On 11 November 2020, the applicant attended a hearing before the Tribunal with the assistance of a Hindu interpreter. The applicant, Sponsor and two witnesses gave evidence. On the same day, the Tribunal made a decision affirming the delegate’s decision. On 13 November 2020, the Tribunal provided to the applicant a written decision record.
TRIBUNAL’S DECISION
With reference to cl 820.211(2)(d) of Schedule 2 to the Regulations, the issue before the Tribunal was whether the applicant satisfied criterion 3001 unless there were compelling reasons for not applying the Schedule 3 criteria.
The Tribunal at [4] found that the applicant did not satisfy criterion 3001.
The Tribunal then considered at [8]-[22] whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found:
(a)at [17] that the relationship between the applicant and Sponsor was not a compelling reason to not apply the Schedule 3 criteria;
(b)at [18] that anticipated financial hardship was not a compelling reason to not apply the Schedule 3 criteria;
(c)at [19] that the level of emotional and physical hardship the Sponsor may anticipate was not a compelling reason to not apply the Schedule 3 criteria;
(d)at [20] that the ramifications for the parties in terms of their future plans and attempts to have a child was not a compelling reason to not apply the Schedule 3 criteria; and
(e)at [21] that any difficulties the Sponsor may find in adapting to life in Fiji was not a compelling reason not to apply the Schedule 3 criteria.
The Tribunal at [22], after considering the above circumstances collectively, was not satisfied there were compelling reasons to not apply the Schedule 3 criteria.
It followed from the above that the applicant did not satisfy cl 820.211(2)(d) of Schedule 2 to the Regulations.
PROCEEDINGS IN THIS COURT
Application and steps up to 7 April 2025
On 27 November 2020, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision. The application included three grounds as follows (reproduced as written) (Application):
1.The decision of the Tribunal and the failure to accept compelling circumstances is affected by error of law on the basis of undertaking fertility test, long term relationship and reasons outlined in letter dated 26 October 2020.
2.The Tribunal misapplied the law and misinterpreted the term compelling in order to waive Schedule 3 criteria.
3.The Tribunal's decision is not reasonable and made contrary to Farhat v Minister for Immigration and Border Protection [2018] FCA 93.
On 10 June 2021, the first respondent filed a written submission (RS).
On 6 July 2021, the applicant filed a written submission (AS). The written submission makes contentions beyond the grounds in the Application – see paragraphs 47 – 48 below.
On 17 February 2025, following a period of inactivity, the parties were notified by the registry of the Court that the matter was listed for hearing on 7 April 2025.
Hearing on 7 April 2025
At the hearing in this Court, the applicant appeared before the Court unrepresented, assisted by a Hindi interpreter. Max Gao of HWL Ebsworth Lawyers appeared for the first respondent.
The applicant brought to Court a copy of the Court Book, filed and served by the first respondent in March 2021, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision. I explained to the applicant that the Court’s role was limited to determining whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error. I told the applicant that, to win his case in the Court, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision.
I then asked the applicant if he wanted a 10-minute adjournment to consider oral submissions to make to the Court. The applicant declined this offer.
Mr Gao tendered the Court Book (CB). The applicant read an affidavit annexing a transcript of the hearing before the Tribunal on 11 November 2020, and tendered a letter dated 22 October 2024 written by a social worker to the Department in support of a request by the applicant to remain in Australia.
The applicant then made oral submissions. He stated that the Tribunal failed to take into account or act on the applicant’s compelling circumstances explained in the 30 October 2020 Materials. I asked the applicant if there was any particular information in the 30 October 2020 Materials which the Tribunal did not refer to in its decision. The applicant did not identify any particular information.
Mr Gao then made oral submissions.
CONSIDERATION
Ground 1 in Application
On 30 October 2020, the Tribunal received from the applicant the 30 October 2020 Materials.
It appears to be stated in ground 1 that the Tribunal erred by not accepting the applicant’s evidence and submissions in his letter dated 26 October 2020, including evidence concerning “fertility test [and] long term relationship”.
It is stated at AS [6] that the Tribunal’s reasons “ignore the evidence submitted” in the documents provided to the Tribunal on 30 October 2020 and “ignored completely the evidence provided”. It is stated at AS [9] that “the Tribunal failed to consider our evidence of 26/10/2020”.
The applicant stated in his letter/submission dated 26 October 2020:
(a)The applicant and Sponsor were trying to conceive a child and needed to be together to try to conceive a child, including by IVF.
(b)Due to the coronavirus, it was impossible to return overseas and apply offshore. Further, the uncertainty of the length of offshore processing would prejudice the plans of the applicant and Sponsor to have a child.
(c)The Sponsor was dependent on the applicant for emotional, physical and psychological support.
The applicant’s statement dated 25 October 2020 principally addressed the genuineness of the relationship between the applicant and Sponsor.
The Sponsor’s statement dated 25 October 2020 addressed the genuineness of the relationship between the applicant and Sponsor, the Sponsor’s dependence “emotionally, physically and mentally” on the applicant, and the fact the Sponsor was undertaking an IVF procedure to try to have a child.
The six statements from other persons addressed various matters including the genuineness of the relationship between the applicant and Sponsor, the Sponsor’s reliance on the applicant, and the provision of financial support for the applicant until he obtains permanent residency in Australia.
The Tribunal did not expressly refer in its reasons for decision to the 30 October 2020 Materials. However, the Tribunal referred to matters raised in the materials. For example:
(a)The Tribunal at [17] considered “the existence of a genuine relationship” but found “their relationship (and its longevity) is not a compelling reason to not apply the Schedule 3 criteria”.
(b)The Tribunal at [18] considered the issue of economic hardship and inconvenience, but was “not … satisfied the anticipated financial hardship is a compelling reason to not apply the Schedule 3 criteria”.
(c)The Tribunal at [19] considered the Sponsor’s emotional and physical reliance on the applicant, but was “not satisfied … that the level of emotional and physical hardship the sponsor may anticipate is such they are compelling reasons to not apply the Schedule 3 criteria”.
(d)The Tribunal at [20] “considered the ramifications for the parties, both in terms of their future plans and their attempts to have a child”, but was “not satisfied … these circumstances are compelling reasons to not apply the Schedule 3 criteria”.
The applicant did not identify to the Court a matter contained or raised in the 30 October 2020 Materials which the Tribunal did not address in its reasons for decision.
Further, the Tribunal at [13] stated that it “has considered the document the applicant has provided the department previously, and the Tribunal prior to the hearing”. Based on the materials before the Court:
(a)I consider that the word “document” was a typographical error “in the nature of a slip of a key” or “a clerical error” (EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1252 at [29] and [31]) and the Tribunal intended to write “documents”. Among other reasons, given that the Tribunal acknowledged in this sentence that the applicant provided documents on at least two occasions (at least once to the Department and at least once to the Tribunal), it is obvious that the word “document” should be “documents”.
(b)I consider that the reference to “document” (or “documents”) “prior to the hearing” is a reference to the 30 October 2020 Materials.
For the above reasons, I am satisfied that the Tribunal considered the 30 October 2020 Materials. That the Tribunal was not persuaded that the matters in the materials constituted compelling reasons is not an error, let alone a jurisdictional error.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2 in Application
It is stated in ground 2 that “the Tribunal misapplied the law and misinterpreted the term compelling in order to waive Schedule 3 criteria”. This ground lacks particulars. The applicant did not provide particulars concerning this ground in his written submission filed on 6 July 2021 or in oral submissions at the hearing on 7 April 2025. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 (NWWJ) at [37].
The Tribunal at [9] and [10], after correctly noting that the expression “compelling reasons” is not defined in the Regulations, considered Federal Court authority concerning the meaning of the expression. I cannot identify any misapplication of the law or misinterpretation of the term “compelling reasons” by the Tribunal.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3 in Application
It is stated in ground 3 that “the Tribunal’s decision is not reasonable and made contrary to Farhat v Minister for Immigration and Border Protection [2018] FCA 93 (Farhat).
To the extent that the applicant asserts that “the Tribunal’s decision is not reasonable”, this part of ground 3 lacks particulars. As stated above, a “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ at [37].
In relation to the applicant’s assertion that the Tribunal’s decision was made contrary to Farhat, the case of Farhat concerned a delegate’s consideration of the power in reg 2.05(4) of the Regulations to waive a condition of a visa if:
since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances;
The Federal Court at [44] found that “the delegate did not understand and address the case that the appellant sought to make in support of his request to waive” the condition. The applicant in the present matter has not established this error in the Tribunal’s decision. Farhat is distinguishable from the present matter.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Additional contentions in applicant’s written submission
It is contended at AS [4] that the Tribunal “acted contrary to the Department’s Procedures Advice Manual [PAM3] which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status”. First, the applicant did not tender the relevant part of PAM3 to establish an evidentiary basis for this contention. Second, even if PAM3 contains the proposition stated at AS [4], the Tribunal at [22] was not satisfied “the circumstances as supported by the evidence satisfy the Tribunal there is a compelling reason to not apply the Schedule 3 criteria”.
It is contended at AS [11] that the Tribunal “failed to acknowledge the prejudice the sponsor and the applicant would be enduring by the separation and it was not open to the Tribunal to make the finding it made based on the evidence provided”. In relation to the applicant’s complaint that the Tribunal “failed to acknowledge the prejudice the sponsor and the applicant would be enduring by the separation”, I consider that the Tribunal considered these matters in its decision at [18]-[21]. In relation to the applicant’s complaint that a finding was not open to the Tribunal, the applicant has neither identified or particularised the finding, nor explained why the (unidentified) finding was not open to the Tribunal. I have considered the Tribunal’s findings at [17]-[22]. I consider that the Tribunal’s findings were open to the Tribunal for the reasons provided by the Tribunal in these paragraphs.
The additional contentions in the applicant’s written submission do not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, the parties made submissions on costs. Mr Gao sought costs in the scale amount of $8,371.30, although in an email to chambers following the hearing, the amount sought was reduced to $5,600. The applicant did not oppose the amount sought. I consider the amount of $5,600 is reasonable. I will make an order in this amount.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 9 May 2025
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