Monakova v MIMA

[2006] FMCA 849

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONAKOVA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 849

MIGRATION − Refugee Review Tribunal − application for spouse visa in Australia − whether "compelling reasons for not applying criteria" – jurisdictional error − whether applicant’s ability to remain in Australia while awaiting grant of aged parent visa relevant to "compelling reasons" – irrelevant consideration taken into account.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707

Applicant: KAMILLA MONAKOVA

Respondents: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL

File number: MLG 1676 of 2005

Judgment of: Phipps FM

Hearing date: 4 May 2006

Date of last submission: Nil

Delivered at: Melbourne

Delivered on: 16 June 2006

REPRESENTATION

Counsel for the Applicant: C Symons

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondent: C Horan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The decision of the second respondent made on 23 November 2005 upholding the decision of the delegate of the first respondent made on 22 March 2005 to refuse the applicant the grant of a spouse visa be set aside.

2. There be an order in the nature of a writ of mandamus remitting the matter to the second respondent and requiring that the second respondent hear and determine the matter according to law.

3. The First Respondent pay the Applicant’s cost fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1676 of 2005

KAMILLA MONAKOVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant has been refused a temporary spouse visa and the refusal affirmed by the Migration Review Tribunal.

2. To obtain the visa, the applicant had to show compelling circumstances. The Tribunal found they were not compelling circumstances.  The applicant claims that the Tribunal took into account an irrelevant consideration.  The Tribunal took into account that the refusal of the spouse visa application will not result in the enforced separation of the applicant and her spouse.  This is because the visa applicant holds a bridging visa and is in the queue awaiting the processing of her application for an aged parent visa.

3. The applicant argues that this is an irrelevant consideration, and that by taking it into account, the Tribunal exceeded its jurisdiction.

History

1. The applicant is a female citizen of the Russian Federation, now 75 years old.  She last arrived in Australia on 4 October 2002 as the holder of a visitor visa.  She has remained in Australia since then.

2. On 24 October 2002, the applicant lodged an application for an Aged Parent visa, sponsored by her only child, who is an Australian citizen.  On 27 April 2004, the applicant was placed in the queue for a parent visa.  This means that the applicant meets the key criteria for the visa and her application will be processed when places become available.

3. On 16 August 2004 she married the sponsor.  He was 77 years old at the time of the Tribunal's decision.  On 25 February 2005 she applied for a temporary spouse visa.  In the application she acknowledges that she is not eligible to apply within Australia, unless she shows compelling reasons.

4. The delegate of the Minister refused the application and the refusal was affirmed by the Migration Review Tribunal.

The tribunal's decision

1. The applicant had to satisfy the criteria set out in clause 820.211 of the Migration Regulations 1994 (Cth). There is no dispute that she satisfies the requirement that she must be the spouse of an Australian citizen and sponsored by her spouse. Then she had to satisfy cl.820.21(2)(d)(ii). It provides that the applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004, "unless than the Minister is satisfied that there are compelling reasons for not applying these criteria".

2. The applicant did not satisfy the criteria because her spouse visa application was made more than 28 days after the expiry of her last substantive visa.  Therefore, there had to be "compelling reasons".

3. Clause 820.211(2)(d) was inserted by Statutory Rule 75 of 1996. The Tribunal referred to the Explanatory Memorandum to Statutory Rule 75 of 1996 which states:

   It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as….. where there are Australian-citizen children from the relationship, or

   The relationship is a genuine and ongoing one and has been in existence for two years or more at the time of application

4. The Tribunal noted the guidance in the Procedures Advice Annual 3.  It refers to the same circumstances as the Explanatory Memorandum.  It says that this did not mean that only those cases with such circumstances should benefit from the waiver.

5. The Tribunal referred to several Federal Court cases where the question of compelling reasons had been considered and a dictionary definition of compelling.  It then sets out its finding essentially in paragraphs 50 of its decision

   50.  In relation to the compelling reasons for the waiver of Schedule 3 criteria, the visa applicant has submitted that the refusal of the spouse visa would result in hardship to her and the sponsor, having regard to their age, the sponsor's ill-health, and the financial burden for them both if she has to return to Russia (either with or without the sponsor) to lodged a fresh spouse visa application.  The Tribunal accepts that the couple is of advanced years, and that the sponsor suffers from several serious medical conditions.  The Tribunal accepts that, apart from the visa applicant, the sponsor has no close family in Australia, and that the visa applicant has no close family in Russia.  The Tribunal also accepts that the visa applicant has complied with visa conditions during her visit to Australia.  The Tribunal accepts the medical evidence that the sponsor would benefit from the continuing care exercised by the visa applicant.  Were they the only factors for consideration in this case, the Tribunal would have been inclined to accept that there are compelling reasons for not applying the Schedule 3 criteria.  However, the refusal of the spouse visa application will not result in the enforced separation of the couple, as the visa applicant can remain lawfully in Australia until the Department completes the processing of her application for an aged parent visa.

6. In the next paragraph the Tribunal says that it may be the case that the visa applicant is not eligible for a carer’s pension and other benefits while holding a bridging visa.  The Tribunal did not consider that a delay in the applicant becoming eligible to apply for possible future benefits constitutes compelling reasons.

The applicant's argument

1. The applicant's written contentions describe the Tribunal as making a preliminary finding that there are compelling reasons and then using what the applicant claims is an irrelevant consideration to find that there are not.  The argument, in part, appears to be a criticism of the Tribunal using a two step approach.  However, the substance of the applicant's argument is that the Tribunal has taken into account an irrelevant consideration and so committed a jurisdictional error of the kind described in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at [82].  The irrelevant consideration is that refusal of the spouse visa will not mean that the applicant must leave the country because she has a bridging visa while she waits for the processing of her aged parent visa.

2. In Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, (Weinberg J) considered a challenge by the applicants to the Reserve Bank's decision to designate EFPTOS. The applicants contended that the reserve bank took into account a number of irrelevant considerations. At [512] His Honour referred to a section of the relevant legislation which provided that in determining whether any particular matter is in the public interest, the Reserve Bank is required to have regard to various matters. The section provides a list of mandatory considerations, but then says that the Reserve Bank is empowered to "have regard to other matters that it considers are relevant". His Honour said:

   In other words, the legislative scheme implies that, short of capriciousness, the determination of whether or not these additional matters are relevant, and what weight they should be accorded, is largely a matter for the RBA.

3. His Honour said at [514]:

   another way of looking at this matter is that which was adopted by the Full Court in Seven Television at [137], where it was said:

   “For a consideration to be irrelevant in this sense the statute must expressly or impliedly prohibit consideration of it-Minister for Aboriginal Affairs v Peko-Wallsend at 40: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50.

4. The Migration Act 1958 (Cth) and the Migration Regulations do not expressly prohibit consideration of the circumstance that refusal of the spouse visa will not mean that the applicant must leave the country because she has a bridging visa while she waits for the processing of her aged parent visa. The question is whether that they do so impliedly.

5. The statutory scheme by which visas exist and are granted is a combination of provisions of the Migration Act and the Migration Regulations. Section 29 of the Migration Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia. Section 30 provides that a visa may be either a permanent visa or a temporary visa. Section 31 provides for regulations to prescribe classes of visas and prescribe criteria for a visa of a particular class.

6. Regulation 2.01 of the Migration Regulations provides that the prescribed classes of visas are those set out in Schedule 1. Regulation 2.02 provides that sub-classes of visas are as set out in schedule 2. Regulation 2.03 then provides that for the purposes of s.31(3) of the Migration Act, the prescribed criteria for the grant of a visa are set out in schedule 2.

7. Finally, s.65 of the Migration Act requires the Minister to grant a visa if the criteria described by the Act and the regulations are satisfied.

8. Schedule 1 of the Migration Regulations contains two classes of temporary or provisional partner visas. Class UF (r.1220A), for which application must be made outside Australia, has two subclasses, the relevant one being subclass 309 (Spouse (Provisional)). Class UK (r.1214C), for which application must be made in Australia has one subclass, 820 (Spouse).

9. The criteria for both subclasses, contained in clause 309 and 820 of schedule 2 are complicated.  For a person married to an Australian citizen, the criteria are essentially the same for each subclass except for the criteria for making the application in Australia.  The scheme for spouse visas for persons married to an Australian citizen contained in the Act and Regulations contains common criteria for both subclasses, and then additional criteria if the application is made within Australia.  Additional criteria do not apply for persons outside Australia.

10. Clause 820.2 sets out the primary criteria for a subclass 820 visa.  Subclauses 820.211(1)&(2) provide:

    820.2     Primary criteria

    Note    The primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.

    820.21       Criteria to be satisfied at time of application

    820.211     (1)   The applicant:

    (a)is not the holder of a Subclass 771 (Transit) visa; and

    (b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).

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

    (a)     the applicant is the spouse of a person who:

    (i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (ii)is not prohibited by subclause (2B) from being a sponsoring spouse; and

    (c)     the applicant is sponsored:

    (i)if the applicant's spouse has turned 18 -- by the spouse; or

    (ii)if the applicant's spouse has not turned 18 -- by a parent or guardian of the spouse who:

    (A)   has turned 18; and

    (B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (d)in the case of an applicant who is not the holder of a substantive visa -- either:

    (i)   the applicant:

    (A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

    (B)   satisfies Schedule 3 criterion 3002; or

    (ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

11. The applicant’s visa application seeks to satisfy Subclause 820.211(2).  The requirements of paragraphs (a) and (c) are the same as requirements which must be satisfied if the application for a spouse visa is made outside Australia.  Satisfying paragraph (d) permits an applicant to make the application in Australia.  In other words, if the applicant cannot satisfy paragraphs (d) then the application must be made from outside Australia.

12. Subclause 820.211(2)(d) provides that an applicant who does not hold a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are "compelling reasons for not applying those criteria".

13. Schedule 3 is headed "Additional criteria applicable to unlawful non-citizens and certain bridging visa holders".  The applicant does not satisfy any of those criteria and so the Tribunal had to consider whether there were "compelling reasons for not applying those criteria”.

14. The purpose of criteria 3001, 3003 and 3004 is clear.  They set out criteria which, if satisfied, permit a person to make an application for a spouse visa in Australia who, otherwise, would have to make the application from outside Australia.  Their purpose is not to permit a person to remain in Australia.

15. The "compelling reasons for not applying those criteria" must be reasons which are relevant to the purpose of the criteria.  They must be relevant to the purpose of permitting the person to make an application for a spouse visa in Australia.  To take into account a consideration which is not relevant to the purpose is to take into account an irrelevant consideration.

16. The fact that the applicant can remain lawfully in Australia until the Department completes the processing of her application for an aged parent visa is irrelevant to whether the applicant should be permitted to make an application for a spouse visa in Australia.  The applicant is entitled to make an application for a spouse visa.  If she left Australia and made the application outside Australia, she would not have to satisfy criteria 3001, 3003 and 3004 and would be granted the visa.

17. If she satisfied criteria 3001, 3003 and 3004 she could apply in Australia and would be granted the visa.  The Tribunal's reasoning, if correct, means that the only way the applicant can obtain a spouse visa is by leaving Australia and incurring the hardships which the Tribunal considered are compelling reasons for not requiring her to leave Australia to obtain the spouse visa.

18. The Tribunal has taken into account a consideration which the regulations do not permit to be taken into account.  By doing so it has committed a jurisdictional error.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Sherryn Kwong

Date:  20 June 2006