MIRUKAJ v Minister for Immigration

[2016] FCCA 3062

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIRUKAJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3062

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – Tribunal properly considering applicant’s claims – application dismissed.

Legislation:

Migration Regulations 1994 cl. 820.211(2)(d)(ii)

Applicant: ERGYS MIRUKAJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 159 of 2016

Judgment of: Judge Burchardt

Hearing date: 14 October 2016

Date of Last Submission: 14 October 2016

Delivered at: Dandenong

Delivered on: 5 December 2016

REPRESENTATION

Counsel for the Applicant: Ms J. McGrath

Solicitors for the Applicant: MSM Legal

Counsel for the Respondent: Ms C. Stokes

Solicitors for the Respondent: The Australian Government Solicitor

ORDERS

1. The application filed 2 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 159 of 2016

ERGYS MIRUKAJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter involves a short point involving construction of the decision of the Administrative Appeals Tribunal dated 21 April 2016.  Both counsel are to be commended for the economical and focused way in which they presented their arguments.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant a Partner (Temporary) (Class UK) visa. 

2. The relevant facts of the matter are not in dispute.  The applicant arrived in Australia in 2014 as part of the Albanian wrestling team and it is common cause that his then visa expired on 29 May 2014.  Since then he has only held bridging visas.  He married his wife, Rebecca, on 19 March 2015 and applied for the visa, which has led to this proceeding, on 30 May 2015.  Counsel for the applicant readily and properly conceded that the applicant needed either to have a substantive visa or otherwise to satisfy the Migration Regulations 1994 (“the Regulations”). 

3. It is conceded that the applicant did not have a substantive visa and for a number of reasons did not satisfy the regulations.  Schedule 3 of the regulations was not satisfied because the applicant’s application was not made within the 28 day limit of the expiry of his last substantive visa on 29 May 2014.  Indeed, the application was made one day over a year later.  This means that the applicant had to meet the requirements of cl. 820.211(2)(d)(ii) of the Regulations which relevantly provide that the applicant satisfies scheduled criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 

4. Counsel for the applicant clarified at the commencement of the hearing not only that ground 1 of the application is no longer pressed but that the foreshadowed addition of ground 3 was likewise not pressed.  This means that the court is concerned only with ground 2, which asserts that the Tribunal committed a jurisdictional error in that it took into account an irrelevant consideration.  Particulars of this ground are that:

   the Tribunal found (see for example paragraph 31 of the decision record) that if a (economic) situation was created by the applicant, it cannot constitute a compelling reason. 

5. Counsel took the court to the PAM3 guidelines (MFI-3), which, of course, are policy guidelines only and not binding on the Tribunal, and I note that paragraph 8.7 relevantly provides that:

   the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.    The provisions are not intended to give, or be perceived to give an unfair advantage to persons who:

   fail to comply with their visa condition

   or to deliberately manipulate their circumstances to give rise to compelling reasons

   or can leave Australia and apply for a partner visa outside Australia. 

6. It is common cause that by working in his vegetable business, as the applicant did when he had only a bridging visa, the applicant failed to comply with his visa conditions, and it is further conceded that he could leave Australia and apply for a Partner visa outside Australia.  What is submitted on behalf of the applicant, however, is that the Tribunal fell into jurisdictional error in the way in which it approached the second of the three matters referred to in PAM3 which I have set out, namely, the deliberate manipulation of circumstances to give rise to compelling reasons.

7. Counsel took the court to transcript page 14, annexed to the affidavit of Jane Louise McGrath, affirmed 26 August 2016, where the Tribunal member was discussing with the applicant, through the interpreter, what a compelling circumstance was.  It was submitted then looked at fairly and taken in conjunction with the findings that the Tribunal actually made, this suggested that the Tribunal found that because the applicant had set up a business, this could never be a compelling circumstance because it was something he had himself manufactured. 

8. It was submitted that this was an error.  What the Tribunal member asked was:

   why is it a compelling circumstance?  This is a risk that you have taken, investing when you don’t have a visa to remain here at the moment.

   I’m asking why do you say this is a compelling circumstance when this is a risk you have entered into, knowing that you only had a bridging visa.  You have no right, no visa to remain here into the future.

9. The Tribunal member then went on to note at the bottom of the page that the applicant knew in October 2015 that he had had a negative decision and yet started his business in November 2015.  It should be noted that the Tribunal had discussed the question of the vegetable production company, which appears to be highly profitable, with the applicant for some pages of the transcript before that particular extract.  What the Tribunal actually said is at paragraphs 28 – 31 (CB219) as follows:

   Since the application was lodged, the applicant is now relying on a further ground that he says amounts to a compelling reason.  That is, he has started his own business in Australia as a farmer on his father-in-law’s land.  He claims to have sold $42,180 worth of vegetables to date and to have made a profit close to $37,000.  He claims to have reinvested that money in hothouses so that he can grow vegetables all year round.  He has recently planted tomato plants and they require constant work.  If he had to leave Australia he would lose the crop and lose his investment.  He said he paid some people to help with harvesting, but has no employees.

   The sponsor’s father Mr Lupezinni, gave oral evidence, confirming he has helped the applicant by making available land for the applicant’s business.  He used to grow vegetables himself, but has not done so for a few years due to a back injury.  He previously rented out the land to another person who grew crops, but that person no longer has need for the land.  Mr Lupezinni is now in the business of running a club.

   In post-hearing submissions the representative submitted the applicant had ‘no choice but to try to make money to support himself and his wife’. The Tribunal does not accept this submission. The applicant lives with his sponsor’s family and has declared that her parents financially support them.  There is no evidence to suggest the sponsor’s family would not continue to do so.  There is certainly no suggestion the family would not support the sponsor at university while the applicant is offshore. 

   The Tribunal considers the applicant has knowingly taken a risk in starting a business while holding a Bridging Visa.  In any event, the applicant’s investment in the hothouses is on his father-in-law’s property. That investment will not be lost whilst the applicant goes offshore to apply for a visa.  The applicant claims the current tomato crop cannot be cared for by anyone else, as his father-in-law has a bad back and the sponsor does not have the time or the skills to tend to the crop.  Both the applicant and his father-in-law claim it is not possible to find an employee to care for the plants in the applicant’s absence. The Tribunal considers this is an issue for them to resolve.  If no-one is available, the crop may be lost, however the Tribunal finds this is a situation created by the applicant and does not find it to be a compelling reason. There are no Australian employees who would be affected by the applicant’s absence.  The Tribunal does not accept the effect on potential customers or creditors, through the suspension or closing of the business, amounts to a compelling reason.  The representative submitted the difficulty the applicant in re-establishing the business should be taken into account.  The Tribunal does not accept the difficulties in re-establishing will be of great import, given the apparent ease with which he got the business up and running so quickly and making a profit of $37,000 with his first crops. There is nothing to indicate his father-in-law’s land upon which he has built hothouses will not still be available to him should he return with a Partner visa.  The Tribunal is not persuaded the applicant’s business and the effect on his business with his temporary departure from Australia are circumstances that are sufficiently powerful to lead it to make a positive finding in favour of waiving the required criteria.  The Tribunal is not satisfied there are compelling reasons for not applying the Schedule 3 criteria. 

10. The submission made by the applicant, through counsel, is simply that the Tribunal elevated the conduct of the applicant in starting his business to be a finding that he had deliberately manipulated his circumstances to give rise to compelling reasons, and on the facts this was not a finding open properly to the Tribunal and thus constituted jurisdictional error.  By way of contrast, the counsel for the first respondent submitted that the Tribunal simply addressed the relevant matters against the regulation itself. 

11. In my view, reading the decision fairly and as a whole, the Tribunal’s observations were no more than a response to the applicant’s propositions.  There is no question that the applicant started his business after he had received notification of rejection of his application for the visa.  He knew he was on a bridging visa only, at all times.  He took a risk, in the obvious sense that he might be required to leave Australia, and in some way the business might struggle.  It should be noted that on any view of the matter, he stands squarely within two of the indicated matters in PAM3 that suggest people ought not be given an advantage by waiver of the relevant criteria. 

12. The Tribunal did not, so to speak, form a rigid conclusion that because the applicant had started the business, this could never give rise to compelling circumstances.  Rather, the Tribunal analysed what it was the applicant said would happen to him if he was forced to depart Australia and concluded, in my view, in a fashion well open to it on the materials, that this was not a compelling circumstance.  It should be noted that the Tribunal’s view of the matter was that the difficulties the business might face generally were not made out, save that the crop might be lost, but that this was a matter for the applicant and his father-in-law to resolve. 

13. This does not, in my view, suggest the Tribunal was not properly contemplating the meaning of “compelling reasons” within the context of the PAM3 guidelines and the terms of the regulations themselves.  Accordingly, in my view, the criticism advanced of the Tribunal’s decision is not made out.  The Tribunal, in my view, understood quite clearly the task it was required to undertake and applied itself to that task properly in conformity with the relevant law.  There is nothing to suggest jurisdictional error and it follows that the application must be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 December 2016