Menon v Minister For Immigration and Anor (No.2)
[2018] FCCA 897
•17 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENON v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 897 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa – whether Tribunal considered facts and law relevant to application for Partner visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359AA Migration Regulations 1994 (Cth), regs.1.15A, Schedule 2, cl. 820.211(2) |
| Applicant: | SANDEEP MENON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 410 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 April 2018 |
| Date of Last Submission: | 5 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2018 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper Australia |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 410 of 2017
| SANDEEP MENON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa).
Partner visa requirements
To have been entitled to a Partner visa the applicant had to satisfy, among other things, the criteria specified in cl.820.211(2)(a) and cl.820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Clause 820.211(2)(a) of Schedule 2 to the Regulations requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act, persons are in a “married relationship” if:
a)they are married to each other under a marriage that is valid for the purposes of this Act; and
b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
c)the relationship between them is genuine and continuing; and
d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg.1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
The applicant’s claim for a Partner visa
The applicant, who is a national of India, applied for a Partner visa and a Partner (Residence)(Class BS) Subclass 801 visa on the basis of his relationship with his sponsor (the sponsor) who is an Australian citizen.[1]
[1] CB136
The applicant and the sponsor claimed they met at a party in Granville in June 2011 and committed to a relationship in November 2011. They were married in Sydney on 14 July 2012.[2]
[2] CB320, [10]
The sponsor gave birth to a son, ‘S’, on 17 December 2013. Two birth certificates have been issued for S. The name of S’s father was blank on the first certificate, but the applicant was named as the father on the second certificate.[3]
[3] CB320, [10]
The Tribunal’s Reasons
The Tribunal did not find the applicant or the sponsor to be credible at the hearing.[4] The Tribunal relied on the following inconsistencies between the evidence of the applicant and the sponsor, which the Tribunal put to the applicant and the sponsor under s.359AA of the Act at the hearing:[5]
a)The applicant said the parties lived together since their marriage and had never been apart. The sponsor, on the other, said she was living in Canberra with her family and moved back in with the applicant in September 2016.[6]
b)The applicant said the sponsor’s mother had not attended the parties’ marriage because she was unhappy about the marriage. The sponsor said her mother had been happy about the marriage but could not attend due to a prior commitment.
c)The applicant said S is not attending child care. The sponsor, on the other hand, said S had been attending child care in Canberra two days per week for the past two years.
d)The applicant said he went to Canberra overnight on 13 December 2016 and returned to Sydney the day before the hearing (14 December 2016). The sponsor said she and the applicant went up and back to Canberra in one day (14 December) and did not stay overnight.
[4] CB320, [12]
[5] CB320, [13]
[6] CB320, [13]
The Tribunal found the applicant’s explanations for the inconsistencies to be confused, rambling, and unconvincing, and did not consider that the applicant adequately explained the discrepancies and placed no weight on that evidence.[7]
[7] CB321, [14]
At the end of the hearing before it the Tribunal informed the applicant it had concerns about the genuineness of the parties’ relationship, and requested copies of bank statements for the previous 12 months in the applicant’s name and in the sponsor’s name, and indicated the Tribunal registry would write to the applicant to invite him and S to undertake a DNA test.[8]
[8] CB321, [15]
After the hearing the Tribunal sent a letter to the applicant’s agent offering the applicant an opportunity to provide DNA evidence of the claimed biological relationship between the applicant and S,[9] but by letter faxed on 6 January 2017 the applicant’s agent forwarded to the Tribunal a form signed by the applicant stating he did not intend to provide to the Tribunal any DNA evidence.[10]
[9] CB307
[10] CB314
The Tribunal then considered the matters of which it had to be satisfied before it could be satisfied the applicant was the spouse of the sponsor. The Tribunal found as follows:
a)The applicant and sponsor are validly married.[11]
b)The financial aspects of the relationship between the applicant and the sponsor are not consistent with their being in a genuine and continuing spousal relationship.[12] The Tribunal relied on its findings that the applicant and sponsor do not have any joint assets or debts; the applicant showed a limited understanding of the Centrelink payments the sponsor receives; and there is no evidence the applicant and sponsor ever pooled their financial resources or shared their day-to-day household expenses as claimed.
c)The evidence relating to the applicant’s and sponsor’s household is not consistent with their being in a genuine and continuing spousal relationship.[13] The Tribunal relied on its finding that it was not prepared to accept the applicant and sponsor ever lived together.[14] That finding, in turn, was based on what the Tribunal found to be inconsistencies between the applicant’s and the sponsor’s evidence; on the implausibility of the sponsor’s evidence that she lived with the applicant in Blacktown yet S attended child care in Canberra two days a week; and on the applicant’s claiming she lived with the applicant in Blacktown but stating she had no idea about what was the rent for the property.[15]
d)The Tribunal was not satisfied the applicant and the sponsor represent themselves to other people as being married to each other or plan or undertake joint social activities.[16] The Tribunal relied on a number of matters. These included that none of the sponsor’s friends or family were present at her wedding to the applicant;[17] although the applicant provided a small number of photographs of himself and the sponsor being together, that evidence was limited, given the claimed length of the marriage;[18] the sponsor was unsure of the identity of persons who had made statutory declarations claiming to be mutual friends of the applicant and the sponsor;[19] the Tribunal was not prepared to accept the sponsor informed Centrelink of her marriage with the applicant;[20] the applicant did not attend the sponsor’s mother’s wedding;[21] although the applicant and the sponsor gave consistent evidence they both attended S’s first birthday party, they gave inconsistent evidence about whether they both stayed at the sponsor’s mother house the night before S’s party;[22] and there is no independent evidence that the applicant’s family are aware or support the applicant’s and the sponsor’s relationship.[23]
e)The Tribunal was not prepared to accept the applicant and the sponsor provide emotional support to each other. The Tribunal relied on its not being prepared to accept the applicant is the biological father of S;[24] on the applicant and the sponsor’s lack of knowledge of each other;[25]and inconsistent evidence the applicant and sponsor gave about whether S is attending child care.[26]
[11] CB321, [21]
[12] CB322, [24]
[13] CB322, [29]
[14] CB322, [27]
[15] CB322, [27[
[16] CB323, [37]
[17] CB322, [30]
[18] CB323, [31]
[19] CB323, [32]
[20] CB323, [33]
[21] CB323, [34]
[22] CB323, [35]
[23] CB323, [36]
[24] CB324, [39]
[25] CB324, [40]
[26] CB324, 44]
Based on these findings the Tribunal concluded it was not satisfied the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing; and the Tribunal was not satisfied that the parties live together, or that they do not live separately and apart on a permanent basis; and for these reasons, that the applicant does not meet the definition of “spouse” in s.5F(2)(b)-(d) of the Act. The Tribunal concluded, therefore, that the applicant does not meet cl.820.221(1)(a) of Schedule 2 to the Regulations, and that there was no evidence that the applicant met any of the alternative subclasses of cl.820.221.[27] The Tribunal found it was unnecessary to consider whether the reasons submitted by the applicant are compelling reasons for not applying the Schedule 3 criteria because the Tribunal had found that the applicant had not met an essential criterion for the Partner visa, namely cl.820.221 of Schedule 2 to the Regulations.
[27] CB324, [45]
Grounds of Application
The grounds of the application are as follows (errors in original):
1. The Administrative Appeal Tribunal made a jurisdictional error in denying the Applicant’s application for a Partner (Temporary)(Class UK) visa in failing to consider all the facts and the law related to the Applicant’s application particularly:
Particulars:
(a) The tribunal is not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal is not satisfied that the parties live together or do not live separately and apart on a permanent basis. The Tribunal therefore finds that Mr Menon does not meet the definition of ‘spouse’ in s.5F(2)(b)-(d).
(b) The Tribunal finds it is not dispute that MR Menon wa not a substantive visa holder at the time of application and had not made an application within 28 days of the date of his last substantive visa. Thus, he did not meet criterion 3001 and would have to satisfy the Tribunal that there were compelling reasons not to apply the Schedule 3 criteria.
- The reasons given by The Administrative Appeals Tribunal reveals that the following an unsuccessful application to the Tribunal, the applicant made few applications for judicial review, federal court circuit and full court and high court. In oral evidence the applicant confirmed to the Tribunal that he had to pay costs associated with this applications. Due to his limited income, he couldn’t pay his debts and he had arrange only some payments to repay his debts.
The applicant, who is not legally represented, made no submissions in relation to this ground. That is so even though I read out the ground to the applicant and asked whether he wished to make any submissions about the ground. I informed the applicant that the hearing before me was his opportunity to inform me whether he had any complaint about how the Tribunal reviewed his case.
The first paragraph of the ground by itself does not disclose any jurisdictional error because it does not identify the facts or law it is claimed the Tribunal failed to consider. The two paragraphs under the heading “Particulars” do not identify the facts or law the Tribunal is said not to have considered. The paragraphs repeat the findings the Tribunal made in paragraphs 45 and 47 of its reasons for decision. Whether considered as an independent ground or as a particular to the ground stated in the first paragraph, the last paragraph of the grounds discloses no jurisdictional error. It repeats the substance of paragraph 23 of the reasons for decision of a previously constituted Tribunal whose decision had been quashed.[28]
[28] CB233, [23]
I initially understood the applicant to have submitted that he was not given an opportunity to present documents to support his claims. After further discussion, I understood that the applicant submitted that he would like the matter to be returned to the Tribunal to give the applicant a further opportunity to put before the Tribunal additional documents, including DNA evidence. I need only record here that the applicant did provide documents to the Tribunal and, as I have already noted, at the conclusion of the hearing the Tribunal invited the applicant to submit a DNA test as well as bank statements for the previous 12 months. There is nothing to suggest that, on the material before me, the applicant was not given a fair opportunity to present to the Tribunal such evidence as was available to the applicant to provide to it.
Conclusion and disposition
The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 April 2018
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