Lamichhane v Minister for Immigration - [2019] FCCA 3139

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMICHHANE v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3139

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Partner visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – applicant needed to satisfy Criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) but did not – Administrative Appeals Tribunal was not satisfied there were compelling reasons not to apply Criterion 3001 – Administrative Appeals Tribunal nevertheless failed to provide adequate reasons for its findings and so its decision was legally unreasonable and lacked a intelligible justification – decision of Administrative Appeals Tribunal affected by jurisdictional error – application for constitutional writs of certiorari and mandamus granted.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 368, 430

Migration Regulations 1994 (Cth)

Cases cited:

AGD15 v Minister for Home Affairs [2019] FCA 896

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35
Neilson v Overseas Projects Corporation of Victoria Ltd and Anor (2005) 223 CLR 331
SZEJF v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 724
SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

Applicant:

PRAMILA LAMICHHANE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 872 of 2017

Judgment of:

Judge Dowdy

Hearing date:

1 November 2018

Date of Last Submission:

22 November 2018

Delivered at:

Sydney

Delivered on:

7 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr J. R. Young of Counsel

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the First Respondent:

Mr N. Swan of Counsel

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The decision of the Second Respondent made on 23 February 2017 affirming the decision of the Delegate of the First Respondent made on 30 April 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa is quashed.
The Second Respondent is to determine according to law the Applicant’s application for review of the decision of the Delegate of the First Respondent made on 30 April 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 872 of 2017

PRAMILA LAMICHHANE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a female citizen of Nepal aged 30 years, having been born on 16 April 1989, and a Hindu by religion.
By Amended Application filed in Court on 1 November 2018 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 February 2017 affirming the decision of the Delegate (Delegate) of the First Respondent,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lamichhane v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 3139
Decision Date: 7 November 2019

CaseChat Overview and Summary

The applicant, Ms Lamichhane, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed the Minister for Immigration's refusal to grant her a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa. The central issue was whether the AAT had erred in its assessment of compelling reasons for not applying Criterion 3001 of Schedule 3 to the *Migration Regulations 1994* (Cth), which Ms Lamichhane had failed to meet due to the late lodgement of her application.

The court was required to determine whether the AAT had provided adequate reasons for its findings regarding Ms Lamichhane's claimed compelling reasons for not applying Criterion 3001. Specifically, the AAT needed to be satisfied that there were compelling reasons not to apply the criterion, and the court had to assess if the AAT's reasoning process in reaching its conclusion was legally sound and intelligible. The applicant argued that the AAT's decision was affected by jurisdictional error due to a lack of adequate reasons.

Dowdy J found that the AAT had failed to provide adequate reasons for its findings concerning the compelling reasons presented by Ms Lamichhane. The AAT had acknowledged the applicant's submissions regarding her fear of social stigma, harassment, and potential persecution in Nepal due to her inter-religious marriage, but ultimately dismissed these claims for a lack of reliable evidence. However, the AAT's reasoning for this dismissal was considered legally unreasonable and lacked an intelligible justification, particularly in light of the serious nature of the fears expressed by the applicant and her sponsor. The court concluded that the AAT's decision was affected by jurisdictional error.

The application for constitutional writs of certiorari and mandamus was granted. The decision of the Administrative Appeals Tribunal was quashed, and the matter was remitted to the AAT for redetermination according to law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At [21(A) – (N)] of its Decision Record the Tribunal summarised the solicitor’s submissions and recorded its consideration and findings in relation to those submissions in further subparagraphs identified by Roman numeral (i). The relevant parts of [21] were as follows:[21]In submissions dated 7 February 2017, which attached other evidence including photographs of the parties together and with others and also updated personal relationship statements and bank statements, the following compelling reasons were given, A to [N] below – the Tribunal’s consideration of each claim is noted at roman numerals i.:A)…B)At the time of lodging the partner visa application, around August 2015, the applicant considered returning to Nepal to lodge the application, but claims she had a strong and well-founded fear of social and familial stigma, harassment and abuse for entering an inter-religious marriage.C)The applicant is a Nepali Hindu, and there is a strong taboo and social stigma towards inter-religious and inter-caste marriage – boundless dishonour, embarrassment, degrading harassment and torment associated with such relationships – and the applicant is therefore unwilling to return to Nepal.D)The applicant’s Nepali parents, family and society at large would cause the applicant to suffer significant harassment, torment and difficulty if she had to return to Nepal.E)Hindu society in Nepal is very conservative towards relationships between people of different religions and such couples are subject to social punishment and family and society will try to separate the parties. The applicant fears she will be persecuted by the Hindu Fundamentalist society for entering into an inter-religious relationship.F)The applicant fears for her life if she travels to Nepal.G)…H)…I)The compelling reasons claimed by the Applicant go beyond whether the parties are in a genuine spousal relationship and are concerned with the consequences of their relationship and their differing social, ethno-religious status and recognition in Nepal.i.With reference to B – I, the applicant has provided no reliable evidence to support the claimed possible persecution and hardship she will suffer in Nepal if she goes there. If the applicant is required to travel offshore to lodge her partner visa application, the requirement is only that she is offshore (and not onshore) when she lodges the application and, if the application is successful, that she is offshore when the visa is granted. Citizens of Nepal have a legal right to live, work and access health services in India, under the Treaty of Peace and Friendship Between the Government of India and the Government of Nepal (the Treaty). The claim that there are forceful reasons has been considered, but the claim is based on circumstances that might arise if the Applicant returns to Nepal. The fear of returning to Nepal is not considered a compelling reason, as there I not a requirement that the applicant must return to Nepal to lodge her application.(emphasis added)J)The applicant lost her family home in the 24/05/2015 earthquake and is not aware of her parents’ current whereabouts. She has had no communication with her parents since April 2015 when she told them she intended to marry a Muslim and therefore will not have family support if she returns to Nepal.K)…L)The applicant has faced previous extreme societal and familial pressure and torment based on the nature of the marriage and it would be detrimental to her mental and emotional health if she had to return to Nepal and face her parents and society. The parties claim that the sponsor needs the applicant to care for him at home because of his medical conditions, including psoriatic arthritis.i.No reliable documentary evidence has been provided that the applicant's family or society in general have placed pressure on her or tormented her…(emphasis added)M)…N)…

Decision

Reasons for decision

In her first Statutory Declaration the Applicant further stated that she understood that her residential status in Australia was unlawful and she submitted the following compelling reasons: a)she lost her family home in Nepal during an earthquake on 25 April 2015 and she is not aware of her parents’ current whereabouts;b)she has married a Muslim man without her parent’s consent and against their opposition to divorce her ex-husband and marry the sponsor, despite having been born and raised in a strictly Hindu family;c)she has not had any communication with her parents since April 2015 when she told them about her decision to marry the sponsor;d)she no longer has a place to live in Nepal as her parents have already disowned her because of the decision to abandon her religion, marry a Muslim man and her intention to convert to Islam; ande)she fears leaving Australia and applying for an offshore Partner visa in Nepal because she has no place to live on her own and will not be able to cope on her own without the support of her husband or family.(emphasis added) As at the date of application the Applicant had to satisfy cl.820.211 of Sch.2 to the Regulations. Relevantly, cl.820.211(1) and (2) provided as follows: 820.211(1) The applicant:(a) is not the holder of a Subclass 771 (Transit) visa; and(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).(2) An applicant meets the requirements of this subclause if:(a) the applicant is the spouse or de facto partner of a person who:(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and(c) the applicant is sponsored:(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:(A) has turned 18; and(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and(d) in the case of an applicant who is not the holder of a substantive visa—either:(i) the applicant:(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and(B) satisfies Schedule 3 criterion 3002; 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.(emphasis added) As noted in [3] above, the Applicant’s last substantive visa ceased on 16 or 17 November 2011. As she thus did not hold a substantive visa at the time of application for the temporary Partner visa she had to satisfy Criterion 3001(1) of Sch.3 to the Regulations, which relevantly required her to have made her application within 28 days of 16 or 17 November 2011, being namely by either 14 or 15 December 2011. However, she made her valid Partner visa application on 16 October 2015, some 3 years and 11 months too late. Accordingly, it was necessary for her to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001: see cl.820.211(2)(d)(ii). This was common ground at the hearing in this Court when Mr J.R. Young of Counsel appeared for the Applicant and Mr Swan of Counsel appeared for the Minister.

Ratio Decidendi

Legal Principle Established

By email dated 13 February 2017 the solicitor sent further documents to the Tribunal, including a further Statutory Declaration of the Applicant declared on 2 February 2017 (second Statutory Declaration) which reiterated her claims of not being able to live in Nepal because she had been disowned by her parents for having married the sponsor, who was a Muslim, and her continued fear of being prosecuted by Nepalese society for entering into an inter-religious relationship. The solicitor also forwarded at the same time a Statutory Declaration of the sponsor declared on 3 February 2017 (sponsor’s Statutory Declaration), which included the following paragraphs:[4]Once our relationship started, Pramila told me that she will have to face a social and religious problem because of our marriage. When asked she told me that the relationship between a couple from different religion is not accepted in her home country. I have also done some research on this and found that the couple from different religion are subject to persecution. In most of the case the couple is displaced.[5]My wife also tried to convince her parents about our relationship. Her parents did not accept our relationship. Most recently, her parents are totally out of contact with her.[6]I say that my wife will face social rejection and she will be prosecuted by the society for entering into an inter-religious relationship. The Applicant then appeared before the Tribunal on 17 February 2017 to give evidence and present arguments, together with her solicitor and with the assistance of an interpreter in the Nepali and English languages. The sponsor also gave evidence at the Tribunal hearing. The Tribunal hearing record establishes that the Tribunal hearing extended over a period of two hours. From [8] – [12] of its Decision Record the Tribunal held that the Applicant needed to, but did not, satisfy Criterion 3001. From [13] – [18] the Tribunal recorded the background to and nature of the claimed spousal relationship between the Applicant and the sponsor and their marriage on 30 May 2015. At [21(A) – (N)] of its Decision Record the Tribunal summarised the solicitor’s submissions and recorded its consideration and findings in relation to those submissions in further subparagraphs identified by Roman numeral (i). The relevant parts of [21] were as follows:[21]In submissions dated 7 February 2017, which attached other evidence including photographs of the parties together and with others and also updated personal relationship statements and bank statements, the following compelling reasons were given, A to [N] below – the Tribunal’s consideration of each claim is noted at roman numerals i.:A)…B)At the time of lodging the partner visa application, around August 2015, the applicant considered returning to Nepal to lodge the application, but claims she had a strong and well-founded fear of social and familial stigma, harassment and abuse for entering an inter-religious marriage.C)The applicant is a Nepali Hindu, and there is a strong taboo and social stigma towards inter-religious and inter-caste marriage – boundless dishonour, embarrassment, degrading harassment and torment associated with such relationships – and the applicant is therefore unwilling to return to Nepal.D)The applicant’s Nepali parents, family and society at large would cause the applicant to suffer significant harassment, torment and difficulty if she had to return to Nepal.E)Hindu society in Nepal is very conservative towards relationships between people of different religions and such couples are subject to social punishment and family and society will try to separate the parties. The applicant fears she will be persecuted by the Hindu Fundamentalist society for entering into an inter-religious relationship.F)The applicant fears for her life if she travels to Nepal.G)…H)…I)The compelling reasons claimed by the Applicant go beyond whether the parties are in a genuine spousal relationship and are concerned with the consequences of their relationship and their differing social, ethno-religious status and recognition in Nepal.i.With reference to B – I, the applicant has provided no reliable evidence to support the claimed possible persecution and hardship she will suffer in Nepal if she goes there. If the applicant is required to travel offshore to lodge her partner visa application, the requirement is only that she is offshore (and not onshore) when she lodges the application and, if the application is successful, that she is offshore when the visa is granted. Citizens of Nepal have a legal right to live, work and access health services in India, under the Treaty of Peace and Friendship Between the Government of India and the Government of Nepal (the Treaty). The claim that there are forceful reasons has been considered, but the claim is based on circumstances that might arise if the Applicant returns to Nepal. The fear of returning to Nepal is not considered a compelling reason, as there I not a requirement that the applicant must return to Nepal to lodge her application.(emphasis added)J)The applicant lost her family home in the 24/05/2015 earthquake and is not aware of her parents’ current whereabouts. She has had no communication with her parents since April 2015 when she told them she intended to marry a Muslim and therefore will not have family support if she returns to Nepal.K)…L)The applicant has faced previous extreme societal and familial pressure and torment based on the nature of the marriage and it would be detrimental to her mental and emotional health if she had to return to Nepal and face her parents and society. The parties claim that the sponsor needs the applicant to care for him at home because of his medical conditions, including psoriatic arthritis.i.No reliable documentary evidence has been provided that the applicant's family or society in general have placed pressure on her or tormented her…(emphasis added)M)…N)…