LE v Minister for Immigration

[2018] FCCA 263

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 263

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) (subclass 820) visa – whether the Tribunal failed to properly consider the compelling reasons in relation to the consequences of separation – the assertion that the marital relationship would not sustain separation was expressly identified by the Tribunal – there was no failure by the Tribunal to consider the whole of the integers of the applicant’s claims – the Tribunal was correct to consider compelling reasons after the applicant failed to meet criterion 3001 of Schedule 3 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 486E

Migration Regulations 1994, Schedule 3

Applicant: DOA LE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2461 of 2017

Judgment of: Judge Street

Hearing date: 6 February 2018

Date of Last Submission: 6 February 2018

Delivered at: Sydney

Delivered on: 6 February 2018

REPRESENTATION

Counsel for the Applicant: Ms U Okereke-Fisher

Solicitors for the Applicant: Andy Pham Lawyers

Solicitors for the Respondents: Ms C Hillary
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2461 of 2017

DOA LE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 July 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa.

2. The applicant entered Australia on 21 May 2013 on a student visa. That student visa was cancelled on 23 June 2015. From June 2015 until April 2016, the applicant remained unlawfully in Australia. The applicant is a national of Vietnam and on 19 April 2016, the applicant applied for a Partner Temporary (Class UK) (subclass 820) visa on the basis of his spousal relationship with a Ms Thi Hong Tuan Pham.

3. On 17 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa. The delegate found that the applicant failed to meet the criteria under Schedule 3 to the Migration Regulations 1994 (“the Regulations”) and that there were not compelling reasons not to apply that criteria for the grant of the visa.

The Tribunal’s decision

1. The applicant applied for review and was invited to attend a hearing. The applicant attended the hearing on 11 May 2017 to give evidence and present arguments. Ms Thi Hong Tuan Pham, the applicant’s sponsor, also gave evidence at that hearing.

2. The Tribunal identified the background to the application for review and identified that the issue in the present case was whether the applicant meets the Schedule 3 criteria and if not, whether there are compelling reasons not to apply the Schedule 3 criteria.

3. The Tribunal identified the background to the evidence and outlined that it was not in dispute that the applicant in the present case did not have a substantive visa at the time of application. The Tribunal made reference to the fact the applicant did not enter Australia as the holder of a subclass 995 visa or special purpose visa and that the issue in the present case was whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. There was a correct identification of the relevant legal issues by the Tribunal.

4. The Tribunal turned to criterion 3001 of Schedule 3 and found the applicant applied for the relevant visa on 19 April 2016 and that therefore, the application was made more than 28 days since the applicant held a substantive visa. The last substantive visa expired on 23 June 2015. It was in those circumstances, the Tribunal found that the applicant did not meet the relevant Schedule 3 criteria.

5. Accordingly, the Tribunal was required to consider whether there are compelling reasons for not applying the criteria. That was a correct identification of the legal issue before the Tribunal in the circumstances of the present case.

6. The Tribunal identified that at the hearing, the applicant’s circumstances were discussed, including his migration history and whether there are compelling reasons for not applying the criteria. The Tribunal noted that prior to and at the hearing, the applicant put forward information about the parties’ relationship and reasons for not applying the Schedule 3 criteria. The Tribunal summarised those reasons in paragraphs 17 to 25 of the Tribunal’s reasons. The Tribunal at paragraph 17 addressed the alleged longevity of the relationship and the Tribunal was not satisfied that the longevity of the relationship in the present case was a compelling reason not to apply the Schedule 3 criteria.

7. The Tribunal made reference to the fact that the applicant was the breadwinner. In the Tribunal’s reasons, it appears that the only source of income into the household is the carer pension of the sponsor that she receives for her mother. That apparently is because of changed circumstances of the sponsor’s mother’s health and the care the parties provided to the sponsor’s mother and the proposition that other people could not assist with that care. The Tribunal found that one may accept the sponsor was the breadwinner in the household, however, it did not accept that other members of the sponsor’s family living in Australia or government services would not be able to assist in the care of the sponsor’s mother while the applicant was offshore. The Tribunal was not satisfied that the care of the sponsor’s mother is a compelling reason for not applying the Schedule 3 criteria.

8. The Tribunal then turned to a fear that the parties would not be able to sustain their marital relationship because of the financial hardship and that there is no one else to help the parties. The Tribunal was not satisfied that their separation is a compelling reason not to apply the Schedule 3 criteria.

9. The Tribunal referred to the sponsor saying she cannot go to Vietnam because of the processing time of an offshore partner visa application and that this would place financial and other difficulties on the family unit which was already established and that the family would suffer psychological and marital hardship should the applicant depart Australia. The Tribunal referred to the sponsor’s evidence that she would find it difficult to travel to Vietnam because of her health. The Tribunal accepted that there may be uncertainty of timing for the offshore processing that may concern the parties. The Tribunal understood that the parties may need to make adjustments to their circumstances, including in financial matters. The Tribunal correctly observed however, that the sponsor is not required to depart Australia. It was in these circumstances the Tribunal was not satisfied that this was a compelling reason for not applying the Schedule 3 criteria.

10. The Tribunal then turned to the mortgage on the home and the concern that should the sponsor depart Australia with the applicant, the sponsor may not be able to meet the mortgage payments and that this would see the sale of the property. It is in this context that it was identified the sponsor does not earn a salary and receives a carer pension and was said to be reliant on the applicant. The Tribunal identified the equity left in the property with a market value of $750,000.00 and the applicant’s evidence as to the only income of the household being the carer’s pension and that the applicant does not work and does not have any income. The Tribunal was of the view that the sponsor had managed their financial commitments, including mortgage payments, prior to and after the parties’ marriage, including during the time of her receiving a carer payment.

11. The Tribunal accepted that while an offshore partner visa applicant may provide the parties with an additional challenge, there is no evidence before the Tribunal to suggest the applicant cannot find employment offshore to assist that process. The Tribunal also encouraged the sponsor to seek advice from financial professionals as to the best way to manage her financial affairs. The Tribunal having considered the evidence before it about the parties’ financial matters was not satisfied that the sponsor’s mortgage payments or the parties claimed financial stress is a compelling reason for not applying the Schedule 3 criteria.

12. The Tribunal then referred to a social worker’s report and details relating to the applicant’s previous marriage and the allegation that the applicant’s unlawful presence was due to matters beyond his control. The Tribunal correctly observed it was the applicant’s responsibility to ensure that he abides all conditions of the visa issued to him. The Tribunal was not satisfied that the circumstances identified by the social worker’s report are compelling reasons for not applying the Schedule 3 criteria.

13. The Tribunal then expressly returned to the sponsor’s health and information that the sponsor had developed a major depressive disorder many years ago. The Tribunal referred to the social worker’s report to the effect that the sponsor is suffering from a mental illness which was not diagnosed until recently and that the sponsor needs the ongoing support of the applicant. Reference was also made to suicide attempts on previous occasions by the sponsor and her declining psychological health. The Tribunal accepted that the applicant suffers from conditions as claimed and accepted that approximately 17 years ago the sponsor’s previous marriage broke down. The Tribunal encouraged the sponsor to seek assistance from her health professionals during any stress or separation from the applicant.

14. The Tribunal accepted that the sponsor’s relationship with her daughter is dysfunctional and was encouraged by the daughter’s statement in April 2016 that she usually speaks to the parties when she returns from study and encouraged the sponsor to seek the assistance of her daughter. The Tribunal also encouraged the sponsor to seek assistance from another daughter. The Tribunal encouraged the parties to remain in contact and to support each other via the many communication tools that are available. The Tribunal however, having considered the evidence of the sponsor’s health individually and as a whole, was not satisfied that this is a compelling reason not to apply the Schedule 3 criteria.

15. The Tribunal referred to the social worker’s report as to a lack of support the applicant received from siblings and parents in 2013 to June 2015 and was not satisfied this is a compelling reason for not applying the Schedule 3 criteria.

16. The Tribunal referred to information in relation to Confucianism and on certain other matters in relation to stress disorders, Vietnamese culture and allegiance to the family and about the concept of a good name in the social worker’s report. The Tribunal considered the information as generic and not specific about the parties. The Tribunal having considered that information was not satisfied this amounts to compelling reasons for not applying the Schedule 3 criteria.

17. The Tribunal identified having considered the evidence individually and as a whole, that it was not satisfied there are compelling reasons for not applying the Schedule 3 criteria. The Tribunal found the applicant did not meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. The grounds in the application that are pressed are as follows:

   Ground 2: Jurisdictional Error - The Tribunal failed to consider integers of the Applicant's

   Claims and thereby fell into error.

   PARTICULARS

   The Tribunal failed to consider the applicant’s claim and contention amounting to a failure by the Tribunal to exercise its jurisdiction in circumstances where the applicant had a substantial, clearly articulated argument which it were considered could have established a “compelling reason.”

   a) At paragraph 20 the applicant stated as one of its compelling reasons that "the sponsor cannot go to Vietnam because of the processing time of an offshore Partner Visa Application and “the family unit would suffer psychological and material hardship should the applicant depart Australia.” In response, the Tribunal stated that the sponsor is not required to depart Australia and concluded that the Applicant had not satisfied the Tribunal that this is a compelling reason not to apply the Schedule 3 Criteria

   b) The Tribunal failed to consider the crux of the Applicant's claim - being that processing an offshore Partner Visa will mean that the couple will be separated for a long time. The Tribunal's response “However the sponsor is not required to depart Australia” failed to take into consideration the Applicant's claim which bordered on potential long-term separation

   c) Also, an integer of the Applicant's claim in paragraph 20 was that the family unit in Australia will suffer psychological hardship should the Applicant depart Australia. The Tribunal failed to consider this claim for the purpose of assessing whether it constitutes a compelling reason.

   Ground 3: Jurisdictional Error - The Tribunal misdirected itself and applied the wrong test in construing the regulation leading to a constructive failure to exercise its jurisdiction.

   PARTICULARS

   In Paragraph 2 of the Decision Record, the Tribunal noted that the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii). Pt 820.211(2)(d)(ii) provides that in the case of an applicant who does not hold a substantive visa, the applicant must satisfy the criteria described as 3001, 3003 and 3004 in Sch 3 to the Regulations.

   Application of Sch 3 criteria require that the Applicant satisfy “Sch 3 criteria 3001, 3003 and 3004” unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   In Paragraph 12, the Tribunal gave reasons why the applicant did not satisfy criterion 3001. Prior to proceeding to determine whether compelling reasons existed for not applying the criteria, the tribunal failed to determine why and in what way or circumstances the other criteria (being criteria 3003 and 3004) did not apply. If two or more of the criteria are capable of applying to the applicant, then the reasons why each of the relevant criteria do not apply should have been explored.

2. Counsel for the applicant, Ms Okereke-Fisher, confirmed that grounds 1 and 4 were not pressed.

3. Submissions on behalf of the applicant had been filed with the Court, and those submissions sought to develop an argument not raised by any of the grounds in the application concerning the failure to take into account a relevant consideration. The Court raised with Ms Okereke-Fisher whether any application to amend the application was sought in respect of that ground. Ms Okereke-Fisher identified that argument was no longer pressed in relation to the submissions.

4. This Court has on previous occasions observed that the grounds must reflect the substance of the submissions and if there are new grounds to be argued, an amended application must be prepared identifying the new ground. In any event, in the present case, no application to amend was made.

The Court’s reasoning

Ground 2

1. In relation to ground 2, Ms Okereke-Fisher submitted that the Tribunal had failed to properly consider the compelling reasons in relation to the consequences of separation upon the applicant and the sponsor. It was argued that it was impossible for the parties to be separated and that the relationship could not survive their separation as well as identifying the psychological consequences of the separation.

2. Submissions were provided to the delegate on 20 May 2016 which summarised in paragraphs (a) to (j) the substance of the arguments advanced in relation to the existence of compelling reasons for not applying the Schedule 3 criteria. The substance of those arguments were all the subject of consideration and adverse findings by the Tribunal.

3. There was no express claim advanced before the Tribunal that it was impossible to be separated. No such claim fairly arose on the material before the Tribunal and therefore a claim not raised and not fairly arising on the material cannot give rise to any jurisdictional error.

4. In relation to the assertion of the marital relationship not being able to sustain separation, that claim was expressly identified by the Tribunal in respect of financial hardship. That claim was the subject of a finding adverse by the Tribunal to the applicant. That adverse finding was open on the material before the Tribunal and cannot be said to be illogical or unreasonable.

5. On the face of the material before the Court, there was a real and meaningful engagement by the Tribunal with the submissions advanced on behalf of the applicant and dispositive findings in respect of the whole of the applicant’s claims in respect of compelling reasons. The dispositive findings were open on the material before the Tribunal. There was no failure by the Tribunal to consider the whole of the integers of the applicant’s claims. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Ms Okereke-Fisher submitted that the subject matter of criterion 3003 and 3004 of Schedule 3 to the Migration Regulations 1994 (“the Regulations”) were incorporated into the substance of compelling reasons and therefore had to be the subject of findings for the purpose of the Tribunal being able to address compelling reasons.

2. That argument was not reasonably arguable. This is a case where it was crystal clear that the applicant failed to meet criterion 3001 of Schedule 3 and the Tribunal was correct to then turn its attention to the issue of compelling reasons.

3. The proposition that the Tribunal had to engage in the meaningless exercise of determining whether the criterion of 3003 and 3004 of Schedule 3 to the Regulations applied was unarguable and should not have been advanced. Had that been the only ground advanced in the present case, this Court would have had to consider the consequences of s 486E of the Act in respect of both the solicitor for the applicant and counsel for the applicant.

4. The Court indicated to Ms Okereke-Fisher that it did not regard the matter as arguable. Ms Okereke-Fisher endeavoured to continue to present the argument. The Court again expressed the view that it was not arguable, and Ms Okereke-Fisher persisted and developed the substance of the argument in relation to ground 3.

5. While Ms Okereke-Fisher is to be commended in relation to her fearless advocacy in seeking to develop an argument in the face of strong views from the Court, fearless advocacy must be reasonably arguable. It is necessary for counsel and practitioners to give close attention to what it is that is being argued and whether it really is reasonably arguable. The proposition developed in relation to ground 3 did not bear sustainability as being arguable on a careful consideration and reflection. That careful consideration and reflection should have been undertaken in the present case.

6. Part of the duties of counsel and a practitioner appearing are not only preparation in relation to the argument but a reflection as to whether or not the argument really has substance. There is a higher duty to the Court owed by practitioners and in accordance with that duty, practitioners must not put patently hopeless arguments. There may be arguments that are ones that maybe have an initial difficulty but nonetheless are reasonably arguable. The proposition, however, in the present case that the Tribunal was required for the purpose of considering compelling reasons to engage in the artificial unnecessary exercise of making findings in respect of criterion 3003 and 3004 of Schedule 3 to the Regulations is not supported by authority and was not reasonably arguable. Ground 3 fails to make out any jurisdictional error.

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 February 2018