MANSOUR v Minister for Immigration

[2016] FCCA 2358

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSOUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2358

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Residence) (Class BS) Subclass 801 visa – whether the Tribunal’s hearing was unfair within the statutory regime – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994 (Cth), reg.1.15A, cl.801.221.
Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth (2010) 241 CLR 118

Applicant: ALI MANSOUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 680 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2016

Date of Last Submission: 8 September 2016

Delivered at: Sydney

Delivered on: 8 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S He
DLA Piper Australia

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 $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 680 of 2016

ALI MANSOUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 February 2016, affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa.

2. The applicant is a citizen of Lebanon. On 5 October 2005, the applicant applied for a combined UK Partner (Temporary) Subclass 820 visa and BS Partner (Residence) Subclass 801 visa on the basis of his relationship with his sponsor. The applicant and the sponsor were married on 4 September 2005, and a copy of their marriage certificate was provided to the Department. The applicant and sponsor provided statements in support of their relationship.

The Delegate’s Decision

1. The application for both visas was refused by the delegate on 14 February 2006. The application for the UK Partner (Temporary) Subclass 820 visa was refused on the basis that the delegate was not satisfied that the applicant was the spouse of the sponsoring partner within reg.1.15 of the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant sought a review of the UK Partner (Temporary) Subclass 820 visa on 15 March 2006. On 24 November 2006, the Migration Review Tribunal affirmed the decision, finding that the applicant was at the time of the application not the spouse of his sponsor within the meaning of reg1.15A of the Regulations.

2. The Department later identified that the refusal notification of 14 February 2006 was defective with regards to the notification of the BS Partner (Residence) Subclass 801 visa refusal. That decision record did not state the relevant legislative criterion which led to the refusal of the BS Partner (Residence) Subclass 801 visa application. On 3 September 2015, the applicant was renotified of the decision to refuse his BS Partner (Residence) Subclass 801 visa only. That refusal decision expressly referred to the fact that the subject of the decision was the BS Partner (Residence) Subclass 801 visa application. The delegate found that the criteria for the grant of the BS Partner (Residence) Subclass 801 visa had not been met.

3. The delegate set out the criteria of cl.801.221 of the Regulations relevantly as follows:

   801.221

   (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

   (2) An applicant meets the requirements of this subclause if:

   (a) the applicant is the holder of a Subclass 820 visa; and

   (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

    (i) the sponsoring partner; or

   (ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

    (c) the applicant is the spouse or de facto partner of the sponsoring partner; and

   (d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

(2A) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and

(b) the applicant is the spouse or de facto partner of the sponsoring partner; and

(c) subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

(3) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).

(4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).

(5) An applicant meets the requirements of this subclause if the applicant:

(a)is the holder of a Subclass 820 visa; and

(b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and

(c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

(d) has developed close business, cultural or personal ties in Australia.

(6) An applicant meets the requirements of this subclause if:

(a)the applicant is the holder of a Subclass 820 visa; and

(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

(c)   either or both of the following circumstances applies:

(i) either or both of the following:
            (A) the applicant;

 (B) a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

(ii) the applicant:

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

 at least 1 child in respect of whom the sponsoring partner:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.

(8) The applicant meets the requirements of this subclause:

(a) if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and

 (b) if the Tribunal:

(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.

1. The delegate recorded that as the UK Partner (Temporary) Subclass 820 visa had been refused, the applicant was not the holder of a UK Partner (Temporary) Subclass 820 visa. The delegate explained that the applicant, therefore, did not meet the requirements of subclauses 801.221(2), (2A), (3), (4), (5) or (6) of the Regulations. The delegate also explained that the applicant did not meet the requirements of subclause 801.221(8) of the Regulations. The delegate explained that the applicant failed to satisfy the requirements of any of the subclauses 820.221(2), (2A), (3), (4), (5), (6), (6A), (7) or (8) and that accordingly, the applicant failed to satisfy the requirements of cl.801.221 of the Regulations. The delegate found the applicant did not meet the criteria for a BS Partner (Residence) Subclass 801 visa and accordingly refused the application.

The Tribunal’s Decision

1. By application filed on 23 September 2015, the applicant sought a review of the decision of the delegate made on 3 September 2015 in respect of the BS Partner (Residence) Subclass 801 visa application. The applicant was invited to attend a hearing on 17 February 2016 to give evidence and present arguments. At that hearing, the Tribunal explained to the applicant that the primary criteria for the grant of the BS Partner (Residence) Subclass 801 visa includes cl.801.221 of the Regulations. This clause of the Regulations, requires that the applicant must be the holder of, or have held, a Temporary Partner visa.

2. The Tribunal noted that the applicant stated that he was refused a UK Partner (Temporary) Subclass 820 visa and the applicant alleged that it was the Department’s mistake. The applicant maintained that he had been in Australia since 2005 and that his partner fell pregnant. The Tribunal noted that the Tribunal had explained to the applicant that the Tribunal was independent from the Department and was unable to assess the decision to refuse the UK Partner (Temporary) Subclass 820 visa. The Tribunal noted that the issue before the Tribunal related to the requirements of cl.801.221 of the Regulations. In response, the applicant indicated that he had nothing else to say.

3. The Tribunal found that as the applicant was not the holder of a UK Partner (Temporary) Subclass 820 visa at the time of the decision, the Tribunal found that the applicant did not satisfy the requirements of cl. 801.221 (2), (2A), (3), (4), (5) or (6) of the Regulations. The Tribunal found that the applicant could not satisfy the requirements of cl.801.221 (8) of the Regulations. The Tribunal found that as the applicant did not satisfy subclauses (2), (2A), (3), (4), (5), (6) or (8), he does not satisfy cl.801.221 of the Regulations and therefore did not meet the legal criteria for the grant of the visa at the time of the decision. The Tribunal affirmed the decision of the delegate not to grant the applicant a BS Partner (Residence) Subclass 801 visa.

Proceedings Before this Court

1. On 5 May 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. The grounds of the application are as follows:-

   1. My application was lodged on 5 October 2005. The Department refused my application and then re-opened the case and then refused the application again on 3 September 2015. The Tribunal’s decision is unfair because the Department ruined my life since 14 February 2006.

   2. I ask the Honourable Court to consider this matter as at 2006 because at the time my relationship was genuine even my then wife was pregnant and miscarried and I believe that the department fell into error of law by refusing our application during which time we had genuine relationship.

   3. I wish to submit more information when I receive copy of my file.

   (Errors in original)

3. At the commencement of the hearing, the Court explained to the applicant that the matter was listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The Court explained that the show cause hearing was to determine whether the applicant had an arguable case. The Court explained that an arguable case had to be one of a reasonable argument that the Tribunal’s decision was affected by relevant legal error.

4. The Court explained that the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness. The Court explained this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful, or a reasonable argument that the Tribunal’s decision was unfair. The Court explained that if the Court was satisfied that the Tribunal’s decision was the subject of a reasonable argument that it was affected by relevant legal error, the proceedings would be fixed for hearing on another occasion. The Court explained to the applicant that if not satisfied the proceedings were the subject of a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the proceedings would be dismissed. The applicant confirmed that he understood what the Court had said.

5. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. From the bar table, the applicant maintained that the decision was unfair. The applicant maintained that he had given the Department all necessary documents and that he did not see any reason why he should not have been granted the BS Partner (Residence) Subclass 801 visa.

6. On the face of the material before the Court, the Tribunal complied with its statutory requirements and the applicant had a genuine hearing. It is apparent from the decision of the delegate, as well as the decision of the Tribunal, that the applicant understood the dispositive issue at that hearing, in terms of it being explained to him by the Tribunal and apparent from the earlier decision of the delegate. This Court does not have power to make fresh findings in relation to the applicant’s claims. This Court’s jurisdiction is confined to considering whether or not the Tribunal’s decision was affected by relevant legal error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

7. Further, on the face of the material before the Court, there is nothing to establish that the Tribunal failed to provide the applicant with procedural fairness in the conduct of that review. The Tribunal did not have a discretionary power to grant the applicant the BS Partner (Residence) Subclass 801 visa and the Tribunal correctly addressed the criteria that the applicant had to meet in order to be granted such visa. Nothing said by the applicant from the bar table identified any jurisdictional error in the decision of the Tribunal. The applicant made reference to the earlier decision made on 14 February 2006 in respect of different visas. Such visas are not the subject matter of the proceedings before this Court and this Court has no power to revisit decisions relating to other visas.

8. In relation to Ground 1 of the application, on the material before the court, the Tribunal’s review was conducted in accordance with the statutory regime and there is nothing to establish that the Tribunal’s hearing was unfair within the statutory regime. Whilst the applicant may well be unhappy with the result of the decision on 14 February 2006, this Court’s jurisdiction, as was the Tribunal’s, is confined to considering the relevant criteria in respect of the particular BS Partner (Residence) Subclass 801 visa, the subject of the renotified decision. Ground 1 fails to identify any arguable case of jurisdictional error.

9. Ground 2 is in substance an endeavour to re-agitate the decision in 2006 which is not the subject of the review by the Tribunal. Ground 2 fails to identify any arguable jurisdictional error in relation to the decision of the Tribunal.

10. Ground 3 simply identifies a desire to submit information. In the course of the hearing, the applicant produced a doctor’s certificate that was marked “MFI1”. The doctor’s certificate was not before the Tribunal and went to the merits of the 2006 visa decision which was not the subject of the renotification. Ground 3 fails to identify any arguable jurisdictional error.

11. I take into account the principles and caution Spencer v Commonwealth (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

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

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 October 2016