Mohammed v Minister for Immigration

[2018] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2893

Catchwords:
MIGRATION – Migration Review Tribunal – Administrative Appeals Tribunal – partner (temporary) (class UK) (subclass 820) visa – partner (residence) (class BS) (subclass 801) visa – the Minister conceded that the Tribunal made a jurisdictional error in relation to the applicant’s subclass 820 temporary partner visa application – the Minister conceded that the Tribunal’s decision in relation to the subclass 820 temporary partner visa should be set aside and the matter remitted to the Tribunal for further consideration – in the meantime, the Tribunal affirmed the delegate’s decision refusing the subclass 801 permanent partner visa on the basis that the applicant did not hold a subclass 820 temporary partner visa – whether it was legally unreasonable for the Tribunal to determine the application in relation to the subclass 801 permanent partner visa when the review of the decision relating to the subclass 820 temporary partner visa had not been validly determined.

Legislation:

Migration Act 1958, s. 477(2)
Migration Regulations 1994, Schedule 2, subclass 801, 820

Cases cited:

Basra v Minister for Immigration and Border Protection [2018] FCA 422
Farhat v Minister for Immigration and Border Protection [2018] FCA [93]
Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32

Applicant: SHOUKATH ALI MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 374 of 2016

Judgment of: Judge Riley

Hearing date: 24 May and 26 September 2018

Date of last submission: 26 September 2018

Delivered at: Melbourne

Delivered on: 12 October 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Adam Cunynghame on 24 May 2018
Counsel for the first respondent:	Richard Knowles on 26 September 2018
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Sparke Helmore

ORDERS BY CONSENT

1. Pursuant to s.477(2) of the Migration Act 1958, the time for the applicant to file an application in respect of the decision of the Migration Review Tribunal made on 18 December 2014 in matter number 1312032 be extended to 7 June 2018.

2. The decision of the Migration Review Tribunal made on 18 December 2014 in matter number 1312032 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

ORDER BY THE COURT

1. The decision of the Administrative Appeals Tribunal made on 12 February 2016 in matter number 1505820 be set aside.

NOTATION

(A)The Minister consents to the decision of the Migration Review Tribunal made on 18 December 2014 in matter number 1312032 being set aside because it is affected by the error identified in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32.

FEDERAL CIRCUIT COURT

OF AUSTRALIA
AT MELBOURNE

MLG 374 of 2016

SHOUKATH ALI MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of two administrative decisions. The first decision was made by the Migration Review Tribunal on 18 December 2014.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a partner (temporary) (class UK) (subclass 820) visa.

2. The second decision was made by the Administrative Appeals Tribunal on 12 February 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a permanent partner (residence) (class BS) (subclass 801) visa.

3. In the application to this court as originally formulated, the applicant only sought review of the Tribunal’s decision of 12 February 2016 in relation to the applicant’s subclass 801 permanent partner visa application.  However, in his written submissions, the Minister indicated that he accepted that the Tribunal’s decision made on 18 December 2014 regarding the applicant’s subclass 820 temporary partner visa application contained the same error as was identified in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32.

4. The Minister told the court that he consented to:

   a)the applicant amending his application to seek review of the Tribunal’s decision made on 18 December 2014 regarding his subclass 820 temporary partner visa application;

   b)any necessary extension of time;

   c)the court setting aside the Tribunal’s decision made on 18 December 2014 regarding the applicant’s subclass 820 temporary partner visa application; and

   d)the court remitting the matter to the Tribunal for determination according to law. 

5. Following the hearing in this court, the applicant did file an amended application seeking review of the Tribunal’s subclass 820 temporary partner visa decision dated 18 December 2014.  There will be orders in accordance with the Minister’s consent.

6. The applicant handed up written submissions at the hearing on 24 May 2018 and filed an amended application on 7 June 2018.  The Minister filed further written submissions on 21 June 2018 following the hearing before this court.  Later, the court invited both parties to file further written submissions on the question of:

   whether it was legally unreasonable for the Tribunal to decide the review in relation to the applicant’s permanent subclass 801 partner visa application when the applicant’s application for review in relation to his application for a temporary subclass 820 visa had not been validly determined, notwithstanding that the Tribunal might have reasonably thought that the subclass 820 review application had been validly determined.

7. The Minister asked for a hearing to be convened for oral submissions to be provided to the court on that question. A further hearing was conducted on 26 September 2018.

Background

1. The Minister summarised the background to this matter in his written submissions filed on 29 September 2016 as follows:

   3. The applicant is a citizen of India born on 3 February 1977 who arrived in Australia on 26 February 2009 on a Student subclass 572 Visa. The sponsor, Ms Kayleen Anne Mayer (the Sponsor) is a citizen of Australia, born on 18 October 1990: Court Book (CB) 4. The applicant and the Sponsor were married on 12 September 2012 (CB 118).

   4. On 11 January 2013, on the basis of his marriage to the Sponsor, the applicant lodged a combined application for Partner visa Subclasses 801 and 820 (Combined Visa Application) (CB 10 – 33). The applicant provided a number of documents in support of the application, including financial records, employment and taxation records, and utility bills (CB 33-107). In addition, statutory declarations were provided from supporting witnesses (CB 110-117).

   5. On 26 April 2013, the Department of Immigration and Citizenship (as it was then) (Department) wrote to the applicant seeking further information in support of the application (CB 129-131).

   6. On 21 June 2013, the applicant’s representative provided a number of documents in support of the application. These included identity documents, financial records, utility and telephone accounts, life insurance certificates, documents and photographs relating to the couple’s joint participation in various activities, statutory declarations from supportive witnesses, records pertaining to vehicle registration and a joint statement from the applicant and Sponsor as to the history and nature of the relationship (CB 132-213). Further material, including a submission addressing the Schedule 3 criteria, was provided to the Department on 28 July 2013: CB 218-227.

   7. On 5 August 2013, a delegate of the Minister (the First Delegate) refused to grant the Subclass 820 visa as the applicant did not meet the criteria under cl.820.211 (CB 228-239). In particular, having considered Reg.1.15A of the Migration Regulations 1994 (Cth) (Regulations) and s.5F of the Act, the First Delegate found that the applicant was not the spouse of the Sponsor. In addition, the First Delegate found that given that the applicant was unable to satisfy the prescribed criteria for the grant of a Subclass 820 visa, he was unable to satisfy the prescribed criteria for the grant of the Subclass 801 visa.

   8. On 18 December 2014, the Tribunal affirmed the First Delegate’s decision not to grant the applicant a Subclass 820 visa (CB 248-256).

   9. On 23 April 2015, a delegate of the first respondent (the Second Delegate) made a new decision and renotified the applicant in relation to the Subclass 801 visa application (CB 258-277). The Second Delegate refused to grant the applicant a Subclass 801 visa on the basis that the applicant did not hold a Subclass 820 visa, and as a result was unable to satisfy cl.801.221.

   10.    On 29 April 2015, the applicant applied to the Tribunal, via his appointed migration agent, for review of the Second Delegate’s decision in relation to the Subclass 801 visa. The applicant provided a copy of the Second Delegate’s decision with his application for review (CB 278-289).

   11.    On 13 October 2015, the Tribunal wrote to the applicant, via his migration agent, inviting him to attend a hearing in relation to the Subclass 801 visa application (CB 290-293). The hearing was rescheduled on two occasions, and on 18 January 2016, a third invitation was sent to the applicant’s migration agent for a hearing scheduled to occur on 11 February 2016 (CB 294-305).

   12.    On 10 February 2016, the Tribunal was notified that the applicant was no longer represented by that migration agent, but that the applicant would attend the hearing the following day himself (CB 306-307).

   13.    On 11 February 2016, the applicant appeared before the Tribunal to present arguments and give evidence.

   14.    On 12 February 2016, the Tribunal affirmed the Second Delegate’s decision to refuse the applicant’s application for the Subclass 801 visa (CB 312-314) [on the basis that the applicant did not hold a subclass 820 temporary partner visa].

The Tribunal’s reasons

1. One of the criteria for a subclass 801 permanent partner visa is that the applicant holds a subclass 820 temporary partner visa.  At the time of the Tribunal’s decision, the applicant did not hold a subclass 820 temporary partner visa.  The applicant conceded as much at the hearing before the Tribunal.  Consequently, the Tribunal affirmed the delegate’s decision not to grant the applicant a subclass 801 permanent partner visa.

Ground 1

1. The first ground of review in the application filed on 29 February 2016 and amended on 7 June 2018 (“the application”) is:

   The decision of the Tribunal is affected by error of law as the Tribunal failed to consider the compelling and compassionate circumstances.

2. This ground is without substance.  Once the Tribunal was satisfied that the applicant did not meet one of the mandatory criteria for the subclass 801 permanent partner visa, there was no occasion for it to consider whether there were compelling and compassionate circumstances.

Ground 2

1. The second ground of review in the application is:

   The Tribunal failed to appreciate the nature of the applicant’s case and address the case the applicant sought to make (Farhat v Minister for Immigration and Border Protection 2018 FCA [93]).

2. Farhat v Minister for Immigration and Border Protection [2018] FCA [93] concerns an entirely different factual and legislative matrix.  It is not relevant to the present proceeding. 

3. A complication in this matter is that the original delegate’s decision on the applicant’s original combined application for a subclass 820 temporary partner visa and a subclass 801 permanent partner visa was defective in relation to the subclass 801 permanent partner visa application.  The Minister became aware of this about five months after the Tribunal had invalidly affirmed the delegate’s decision not to grant the applicant a subclass 820 temporary partner visa.  Upon becoming aware of the defect in the delegate’s decision in relation to the subclass 801 permanent partner visa application, a delegate issued a new decision on the subclass 801 permanent partner visa application only.  The applicant sought review by the Tribunal in relation only to the new delegate’s decision on the subclass 801 permanent partner visa application.  It is that application for review that is presently before the court.  There was no application made to the court to review the Tribunal’s decision, which is now known to have been invalid, regarding the applicant’s subclass 820 temporary partner visa application until the amended application was lodged in this court on 7 June 2018 following the hearing in this court.

4. The case that the applicant sought to make before the Tribunal was that his migration agent had made a mistake by only seeking review of the delegate’s new decision in relation to the subclass 801 permanent partner visa application when the agent should also have sought a second review of the delegate’s original decision in relation to the subclass 820 temporary partner visa application.

5. However, when the agent applied for review of the delegate’s new decision in relation to the subclass 801 permanent partner visa application, the Tribunal had already made a decision affirming the delegate’s decision in relation to the subclass 820 temporary partner visa application.  Consequently, the agent could not have applied for review of the delegate’s subclass 820 temporary partner visa decision.

6. In any event, the circumstances described by the applicant amount to no more than negligence by the agent.  The facts of the case do not amount to a fraud on the Tribunal which would enable the Tribunal’s decision to be set aside.

7. The applicant also told the Tribunal that he was a victim of poor decision making by the Department of Immigration of Border Protection.  That may be so.  However, this court is not permitted to review the decisions made by delegates of the Minister in circumstances such as the present.

8. Ground 2 is not made out.

Ground 3

1. The third ground of review in the application is:

   The Tribunal fell into jurisdictional error for the reasons identified in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 in construing clause 820.211(d)(d) of Schedule 2 to the Migration Regulations 1994 as confining the decision maker’s satisfaction of whether there are compelling reasons for not applying Schedule 3 criteria 3001, 3003, and 3004 to circumstances which only exist as at the time of application.

2. As discussed above, the first Tribunal made an error of the type identified in Waensila in relation to the subclass 820 temporary partner visa application.  The second Tribunal did not make an error of that type because the second Tribunal did not consider the detail of the application.  The second Tribunal simply decided that the applicant did not meet the criteria for a subclass 801 permanent partner visa because he did not hold a subclass 820 temporary partner visa.  This ground is not made out.

Additional matters

1. There is a question in this case as to whether it was legally unreasonable for the second Tribunal to refuse the applicant a subclass 801 permanent partner visa on the grounds that the applicant did not have a subclass 820 temporary partner visa in circumstances where the Tribunal’s decision in relation to the subclass 820 temporary partner visa is now acknowledged to have been affected by jurisdictional error. 

2. The consequence of a Tribunal decision being affected by jurisdictional error is that it is no decision at all.  Therefore, when the Tribunal made its decision on the subclass 801 permanent partner visa application, there had not been a valid decision on the applicant’s subclass 820 temporary visa application.  In effect, although unbeknownst to the Tribunal, the applicant’s review application in relation to his subclass 820 temporary visa application had not been validly determined.  From a legal point of view, although not a factual point of view, the applicant’s review application in respect of his subclass 820 temporary partner visa application was an outstanding application.

3. The Minister submitted that the Tribunal’s decision in respect of the subclass 801 permanent partner visa was free of jurisdictional error.  The Minister noted that the Full Court decision in Waensila had not been handed down when the Tribunal made its decision on the subclass 801 permanent partner visa application.  However, that is beside the point.  Once it is accepted that the Tribunal’s decision on the subclass 820 temporary partner visa application was not a valid decision, it is immaterial whether the Tribunal was aware of that invalidity or not.

4. The Minister also noted that even if the applicant were to be granted a subclass 820 temporary partner visa in the future, that could not have retrospective effect so as to mean that the Tribunal’s existing decision on the subclass 801 permanent partner visa contained jurisdictional error.

5. However, that submission does not deal with the issue that, when the Tribunal decided that the applicant did not meet the criteria for a subclass 801 permanent partner visa because he did not hold and has never held a subclass 820 temporary partner visa, there was legally, although not factually, an outstanding application to review the delegate’s decision in relation to the applicant’s application for a subclass 820 temporary partner visa.

6. The Minister also submitted that the applicant did not seek an adjournment from the Tribunal.  That is so.  Like the Tribunal, the applicant did not know that the Tribunal’s decision on the subclass 820 temporary partner visa application was Waensila affected.  The realisation that the Tribunal’s decision on the subclass 820 temporary partner visa application was no decision at all changes everything.  Presumably, with the benefit of what we now know, the applicant would have applied for an adjournment.

7. The Minister also submitted, faintly, that if the Tribunal upheld the applicant’s application for review in respect of the subclass 820 temporary partner visa application, the applicant could apply onshore for another subclass 801 permanent partner visa and not be worse off.  The reason that submission was put faintly was that there may be complications with that course that are not presently apparent.  In any event, there would be, at a minimum, another application fee, which I understand to be not inconsequential.  It seems to me to be immaterial, in determining whether the Tribunal made a jurisdictional error, that the applicant might have a right to make another application onshore for a subclass 801 permanent partner visa.

8. The Minister referred to Basra v Minister for Immigration and Border Protection [2018] FCA 422. However, that case deals with a different point, namely, whether the Tribunal dealing with the subclass 801 permanent partner visa application had jurisdiction to also determine the subclass 820 temporary partner visa application. Moshinsky J held that the Tribunal did not have such jurisdiction. The question in the present case is whether it was reasonable for the Tribunal to decide the subclass 801 permanent partner visa application when the subclass 820 temporary partner visa application had not been validly determined by the Tribunal.

9. It is true that the applicant did not, as a matter of fact, hold a subclass 820 temporary partner visa, and had never held such a visa, at the time of the Tribunal’s decision on the subclass 801 permanent partner visa application.  However, legally, the applicant had an outstanding review application with the Tribunal in respect of his subclass 820 temporary partner visa application.  The review application in respect of the subclass 820 temporary partner visa had to be validly determined before the Tribunal could decide the subclass 801 permanent partner visa review application on the grounds that the applicant did not hold, and had never held, a subclass 820 temporary partner visa.  

1. It seems to me that, in the circumstances, the only reasonable approach was for the Tribunal to adjourn the hearing in relation to the subclass 801 permanent partner visa application until after the Tribunal had validly determined the subclass 820 temporary partner visa application.  That is so, even though the Tribunal did not know, and could not have known, that the existing Tribunal decision in relation to the subclass 820 temporary partner visa application was no decision at all.  That is, the Tribunal’s decision on the subclass 801 permanent partner visa application was unreasonable in a legal sense and must be set aside.

Conclusion

1. For the reasons given, it seems to me that there has been jurisdictional error in this case.  The decision of the Tribunal relating to the applicant’s subclass 801 permanent partner visa application should be set aside and the matter should be remitted to the Tribunal for determination according to law.  I will hear the parties on the question of costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 12 October 2018