MAKO v Minister for Immigration

[2016] FCCA 1881

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAKO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1881

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – show cause hearing – Partner (Temporary) (Class UK) visa – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12
Migration Regulations 1994, Schedule 2, cl.820.221

Cases cited:
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: WADIE MAKO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 756 of 2016

Judgment of: Judge Street

Hearing date: 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Sydney

Delivered on: 22 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 756 of 2016

WADIE MAKO

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 Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 March 2016 affirming the decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant was found to be a citizen of France.

2. The applicant last arrived in Australia on 12 June 2014 on a subclass 651 visa, which ceased on 12 September 2014.  The applicant lodged an application for a Partner (Temporary) (Class UK) visa and the Partner (Residence) (Class BS) visa on 22 October 2014 on the grounds of being in a spousal relationship with an Australian permanent resident, who lodged a sponsorship application in support of the application. 

3. The delegate found that the criteria for the grant of a Partner (Temporary) (Subclass UK) (Subclass A20) and Partner (Residence) (Class BS) (Subclass 801) visa were not met.  The delegate found that the applicant failed to meet the requirements of cl.801.221(2), (2A), (3), (4), (5), or (6).  The delegate found that the applicant did not meet the requirements under cl.801.221(8) and, accordingly, found that the applicant failed to satisfy the requirements of cl.801.221. 

4. The applicant applied for review on 2 February 2015.  On 14 January 2016 the applicant was invited to attend a hearing to take place on 16 March 2016.  The applicant attended on that day to give evidence and present arguments.  The Tribunal identified that the issue in the present case is whether the applicant met the schedule 3 criteria and, if not, whether there were compelling reasons for not applying those criteria.  The Tribunal noted that it was not in dispute that the applicant did not have a substantive visa at the time of his application and that, accordingly, the issue is whether the applicant satisfied the schedule 3 criteria, unless there are compelling reasons for not applying that criteria. 

5. The Tribunal identified that the applicant did not satisfy the criterion 3001, as his last visa expired on 12 March 2014.  The Tribunal then turned to consider compelling reasons and, relevantly, found it was not satisfied that there were compelling reasons for not applying the schedule 3 criteria, and found that the applicant did not meet cl.820.211(2)(d)(ii).  It was in those circumstances that the Tribunal affirmed the decision of the delegate. 

6. On 19 May 2016 a Registrar of the Court fixed this matter for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The applicant was given an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. At the commencement of the hearing the Court explained to the applicant that a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 was a hearing to determine whether the applicant had an arguable case. The Court explained that the arguable case required the decision of the Tribunal to be affected by relevant legal error. The Court explained that the relevant error had to be either an excess of statutory power or a denial of procedural fairness. 

7. The Court explained that, in summary, it had to be satisfied that there is an arguable case that the Tribunal’s decision was unlawful or unfair.  The Court explained that, if satisfied that there is an arguable case, the application would be fixed for hearing on another date.  The Court explained that, if not satisfied that there is an arguable case, the applicant’s application would be dismissed.  The applicant confirmed he understood what had been said by the Court.  The Court explained that it would have identified the evidence, and then give the applicant an opportunity to be heard, and provided the applicant put submissions, it would hear submissions from the solicitor for the first respondent. 

8. From the bar table the applicant made reference to the delegate in the Tribunal having made similar findings.  Those submissions were developed by the applicant from the bar table in support of the application. The submissions invited the Court to engage in an impermissible merits review. The application identifies the following grounds:

   1. I WAS GRANTED A SUBCLASS 651 VISA, WHEN I WAS SURE THAT IT WOULD EXPIR (CEASED) ON 21/11/2014

   2. WHEN I ARRIVED, NOBODY EVEN THE DEPARTMENT’S OFFICERS IN THE AIRPORT DID NOT TELL ME THAT MY VISA WAS GOING TO BE CEASED ON 12 SEP 2014.

   3. WHEN I GOT MARRIED FROM MY SPONSOR Mrs HANAA ODEESH IN OUR CHALDEAN CHURCH. IT TOOK 35 DAYS TO COMPLETE THE MARRIAGE CIRTIFICATE IN FAIRFIELD COURT. THEN I HAD TO WAIT FOR 42 DAYS SO THAT MY NAME WOULD APPEAR ON THE REGISTER ONLINE.

   * THE ABOVEMENTIONED REASONS MADE ME VERY BUSY AND DID NOT LODGING THE APPLICATION ON TIME. ALSO I WAS WAITING TO GET THE CERTIFICATE IN ORDER TO HAVE THE APPLICATION COMPLETED.

   * I HAVE PROOFS THAT CERTIFY THE DATES AND FACTS OF WHAT I AM DISCLOSING.

   * I AM READY TO PROVIDE REFERENCES FROM OUR CHURCH, AND OUR CHALDEAN COMMUNITY ORGANIZATIONS TO PROVE THAT I AM A GOOD AND HONEST PERSON IN THE COMMUNITY.

9. None of the grounds identified disclose any arguable case of jurisdictional error.  The grounds seek to cavil with the adverse findings by the Tribunal.  This Court does not have power to make fresh findings in relation to the applicant’s claims.  Nothing in the application identifies any arguable jurisdictional error by the Tribunal. On the material before the Court the applicant had a genuine hearing.  There is nothing in the material before the Court to suggest that the Tribunal did not comply with its statutory obligation. There is no material before the Court to support any arguable case that the Tribunal failed to comply with its obligations of procedural fairness. 

10. I am clearly satisfied that the application fails to disclose any arguable jurisdictional error.  I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am clearly satisfied that this is a case in which the court should exercise its power under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 July 2016