Mondair v Minister for Immigration
[2020] FCCA 1122
•12 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONDAIR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1122 |
| Catchwords: MIGRATION – Partner visa – where applicant had protracted visa history – where applicant did not hold substantive visa at time of application – whether compelling grounds shown for waiving applicable criteria – applicable principles – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 474, 476 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | HARDEEP SINGH MONDAIR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2595 of 2016 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 6 May 2020 |
| Date of Last Submission: | 6 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor advocate for the first respondent: | Mr A. Cunynghame. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
By consent, pursuant to ss 67–68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 1 December 2016 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2595 of 2016
| HARDEEP SINGH MONDAIR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 1 December 2016, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 3 November 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Partner visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
I have concluded that the application should be dismissed. In summary, the applicant, whose immigration history has been protracted, did not hold a substantive visa at the time his visa application was lodged. The Tribunal correctly recognised the need to consider, and did consider, the relative merits of factors which militated in favour of, and against, the exercise of discretion to decide whether compelling circumstances existed for waiving the applicable criteria.
Background
The applicant, a male Indian citizen aged 44 years, is from the town of Jarag in the Punjab province of India. As his immigration history indicates, he claimed to have had a de facto wife in India (from whom he had separated) and a partner in Australia. It also appears that he has a daughter, Parneet Kaur Mondair, born 11 July 2001 and a son, Balraj Singh Mondair, born 7 August 2005, neither of whom were included as dependents in his visa application.
The applicant’s visa history has been somewhat protracted.
The applicant first came to Australia on 7 December 2008 on a Student visa which ceased on 11 April 2011.
The applicant’s student visa had ceased on 11 April 2011 and he did not hold a substantive visa at any time thereafter.
On 19 January 2011, the applicant lodged a subclass 485 visa application, which application was refused on 26 April 2012.
On 11 April 2011, the applicant lodged a subclass 572 visa application. This application was refused on 5 September 2011. On 26 September 2011, the applicant lodged an application for review of that decision. On 2 July 2013, the Migration Review Tribunal affirmed the decision.
On 26 July 2013, the applicant lodged what was to become the first of two requests for Ministerial Intervention. On 19 January 2014, this request was deemed inappropriate to warrant consideration.
On 4 March 2014, the applicant lodged a Protection visa application. On 23 April 2014, the application for a Protection visa was refused. On 21 May 2014, the applicant sought review of that decision. On 9 September 2014, the decision to refuse a Protection visa was affirmed in circumstances where the applicant did not attend the hearing.
On 13 October 2014, the applicant lodged a further request for Ministerial Intervention which request was also deemed inappropriate to consider.
On 18 December 2014, the applicant applied for a Partner visa (being the subject of the present application). On 28 August 2015, the visa application was refused by a delegate on the basis that the applicant did not hold a substantive visa at the time his visa application was made and that there were no compelling reasons to waive compliance with the applicable criteria. As appears from the reasons of the delegate, it was common ground that the applicant did not hold a substantive visa at the time the Partner visa application was lodged.[1]
[1] Reasons, 28 August 2015, p. 3/28.
The applicant applied to the Tribunal for a review of this decision and on 12 January 2016, the Tribunal affirmed the decision. Again, it was common ground that the applicant did not hold a substantive visa at the time the application was lodged.[2] On 6 July 2016, orders were made by consent that the Tribunal’s decision be quashed.[3]
[2] Reasons, 12 January 2016, [8].
[3]The order made by consent records that the jurisdictional error was established by construing the applicable regulation (cl 820.211(2)(d)(ii)) of the Migration Regulations 1994 (regulations) as confining the question of ministerial satisfaction to the question of whether compelling reasons were shown to waive the criteria otherwise applicable to the grant of the visa to circumstances that existed at the time of application: Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121.
By letter dated 13 May 2016, the sponsor wrote to the Department advising that she had ended her relationship with the applicant “as of the 8-05-2016 and Hardeep has left this address.” Before me, the applicant maintained that his relationship with his sponsor was ongoing.
Tribunal’s decision
On 28 September 2016, a differently constituted Tribunal invited the applicant to attend a hearing on 3 November 2016.
On 3 November 2016, the applicant attended a Tribunal hearing together with his sponsor. On that date, the Tribunal gave an oral decision providing reasons for affirming the delegate’s decision.
On 9 December 2016, the Tribunal provided a written statement of those reasons (Reasons). In substance, the Tribunal reasoned as follows.
The Tribunal recorded that the applicant claimed he was afraid to return to India because was a refugee and that his situation constituted compelling reasons for why he should remain in Australia to have his visa processed. He claimed a well-founded fear of persecution in India by family members and his ‘in-laws’ by reason that he had entered into an inter-caste marriage in India with his wife, Harpreet, and that both of his parents had opposed his Indian marriage.
The Tribunal recorded the applicant’s claim that he belonged to the Congress Party but that the “the opposition party” was the BJP and that this was another reason you wanted to lodge your Partner visa onshore.
The Tribunal was not satisfied that any claims made respecting a fear of returning to India constituted compelling reasons for waiving the Sch 3 criteria as applicable to his application.
The Tribunal noted that the applicant had sought Ministerial Intervention but that his case did not raise any compelling, compassionate or humanitarian considerations as related to his refugee claims. The Tribunal noted that the applicant had waited some six years to file a Protection visa application and he had then not attended the hearing.
The Tribunal also noted that in terms of the applicant apparently having nothing to return to in India, that he had claimed to having two adolescent children in India and that his parents also lived there. The Tribunal also noted the applicant’s claim that he was now estranged from his wife, Harpreet, but observed he had made little effort to divorce her.
The Tribunal was not satisfied that the applicant’s desire to remain in Australia with friends and relatives constituted compelling reasons for waiving the applicable criteria.
The Tribunal considered the applicant’s evidence as to when he had started living with his sponsor, Ms Woller, and found his evidence unconvincing. It referred to the applicant’s evidence where he had first said that he and the sponsor had moved in together in 2013, and that when adverse material was put to him showing that he had told the Department he was living with Amandeep Singh in October 2014 (and not his sponsor), he had again revised his account, stating that he had been moving his things over that period, ‘bit by bit’.
Given the contradictory information before it the Tribunal was not satisfied the duration of the relationship constituted compelling reasons for waiving the applicable criteria as it was unclear as to when he had in fact commenced a de facto partnership with his sponsor or whether it was longstanding.
The Tribunal also addressed the sponsor’s evidence, noting her declared affection for the applicant and that he had provided her with support, including with help around the house. The Tribunal recognised that the sponsor had a 23 year old with a disability and who lives with her, but that the sponsor stated the applicant could not play a significant role in the care of that child (as her son was predominantly trusting of her). The Tribunal further observed that the sponsor’s mother had also raised a child with a similar disability and the mother was of great support to the sponsor in dealing with her child.
The Tribunal said that it had taken into account all of the circumstances raised by the applicant but was not satisfied that his relationship meant that he should have his application assessed onshore. This reasoning may be understood as indicating the Tribunal was not satisfied the relationship between the applicant and sponsor (or her family) provided a compelling reason to waive the applicable criteria.
Upon its consideration of all of the circumstances, the Tribunal was not satisfied that compelling circumstances had been demonstrated such as would warrant the waiver of the criteria otherwise applicable to the visa.
Procedural history
On 1 December 2016, the applicant lodged an application for judicial review together with an affidavit made on that date by which he annexed a copy of the Reasons and deposed that he, together with his sponsor, had attended the hearing but “wasn’t given enough time in the hearing to lay down my evidences (sic) to support my case. I wasn’t aware that I had to provide all my documents in single hearing. I requested them to give me more time so I can gather my documents and evidences (sic) to support my case”.
On 9 December 2016, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
Having regard to the matters set out in the applicant’s affidavit in support of his application for judicial review, the solicitor for the Minister filed an affidavit to which was exhibited a transcript of the hearing before the Tribunal and which is referred to in further detail below.
On 24 May 2017, orders were made by consent regulating the preparation of the proceeding for trial including that the applicant might lodge any amended application, further evidence and submissions. Despite the opportunities afforded to the applicant, he did not do so.
In the circumstances, the submissions filed on behalf of the Minister were responsive to the matters set out in the application.
Judicial review
If the Tribunal’s decision was a privative clause decision,[4] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[5] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[6] Whether it should do so is a separate issue.
[4]Act, s 474(2).
[5]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[6]Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[7] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[7]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[8] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[9] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[8]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[9]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book, including each of the decisions and the application for judicial review, together with the transcript of the proceeding before the Tribunal.
The applicant advanced one ground of review which reads:
I came with my partner on the hearing and I wasn’t given enough time in the hearing to lay down my evidences to support my case. I wasn’t aware that I had to provide all my documents in single hearing. I requested them to give me more time so I can gather my documents and evidences to support my case.
Contrary to the ground of review, the applicant was invited to attend a hearing to present arguments and evidence in support of his application for a merits review of the delegate’ s decision. The invitation, sent to him on 28 September 2016, notified him that he should provide such material no later than 27 October 2016. In the circumstances that the hearing was listed for 3 November 2016, the applicant was afforded ~5 weeks in order to prepare his evidence and gather documents.
As stated, I have examined the transcript of the hearing before the Tribunal. It is clear that, when asked if there was anything further the applicant wished to add before evidence was called from his sponsor, he told the Tribunal member that he did not wish to do so. In a similar vein, upon concluding her evidence, the sponsor also said that there was nothing further which she wished to add. There is nothing on the face of the transcript or in any communications with the Tribunal before the hearing containing any suggestion the applicant sought further time in which to prepare his evidence or gather documents to support his case.
It follows that the ground of review is not made out.
It is equally clear from the transcript that in the course of the hearing the Tribunal afforded the applicant an opportunity to address his claim to a well-founded fear of persecution in India, including that he had waited some six years before filing an application for a protection visa and that he had not attended that Tribunal hearing.
I am satisfied that the Tribunal afforded procedural fairness to the applicant and addressed with him the issues arising upon review from the delegate’s decision including those which the applicant had raised.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 12 May 2020
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