Murdoch v Minister for Immigration - [2016] FCCA 1317

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURDOCH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1317

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Provisional) (Class UF) visa – Partner Migrant (Class BC) visa – whether the Tribunal took irrelevant considerations into account – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, reg.1.15A(3), Sch.2, cls.309.211(2), 309.221

Cases cited:

Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303

Applicant:

THOMAS MURDOCH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 471 of 2015

Judgment of:

Judge Street

Hearing date:

25 May 2016

Date of Last Submission:

25 May 2016

Delivered at:

Adelaide

Delivered on:

25 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent:

Ms Milutinovic

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 471 of 2015

THOMAS MURDOCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 23 November 2015, affirming the decision of the delegate not to grant the applicant a Partner (Provisional) (Class UF) visa.
The applicant was the sponsor in relation to an application for a Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa on 11 July 2014. The visa applicant was a 43 year old female, divorced from her first husband in May 2013. There were two children included in the visa application by the visa applicant.
On 27 February 2015 the delegate refused to grant the visa on the basis that the delegate was not satisfied there was a genuine and continuing spousal relationship, or that the applicant and the sponsor have a mutual commitment to a shared life together, to the exclusion of all others. It was in those circumstances that the delegate found that the applicant was not the spouse of the sponsor, as defined in s.5F of the Migration Act1958.
On 8 May 2015 the applicant applied for review before the Tribunal. By letter, dated 7 October 2015, the Tribunal invited the applicant to appear before the Tribunal on 18 November 2015. The applicant appeared on that date to give evidence and present arguments, and the Tribunal also received evidence from the visa applicant and a mutual friend. The review applicant was represented by his registered migration agent at the hearing.
Prior to the hearing, on 16 November 2015, further documents were submitted on behalf of the applicant, in particular responding to the issues raised by the delegate. After the hearing, on 20 November 2015, further material was provided to the tribunal. The Tribunal identified that, under cl.309.211(2) and 309.221 of the Migration Regulations 1994, there is required, at the time the visa application was made, and at the time of the decision, the position that the visa applicant is the spouse or de facto partner of the Australian citizen. The Tribunal identified the requirements of s.5F of the Migration Act 1958, and also the mandatory considerations under reg.1.15A(3) of the Migration Regulations 1994.
The Tribunal engaged in an orthodox identification of the criteria, and concluded that it was not satisfied that, at the time the visa application was made, or at the time of the decision, the parties were in a spousal relationship, in accordance with the statutory meaning. It was in those circumstances the Tribunal concluded that the visa applicant did not meet cl.309.211 or cl.309.221, and it was in those circumstances that the Tribunal affirmed the decision of the delegate.
On 28 January 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed by the applicant.
The grounds of the application are as follows:
The Second Respondent has fallen into the type of error identified in Angkawijaya & Anor v Minister for Immigration & Anor [2015] FCCA 450 through being unduly influenced by the parties lack of knowledge of each other’s circumstances.
At the commencement of the hearing the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power by the Tribunal, or a denial of procedural fairness. The Court explained that this meant that in summary the Court had to consider whether the Tribunal decision was lawful and fair. The Court informed the applicant that, if satisfied the decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing. The Court explained that, if not satisfied the decision was affected by relevant legal error, the application would be dismissed.
The Court explained that it would identify the evidence, and then hear submissions from the applicant, and then hear submissions from the first respondent, and then hear submissions in reply from the applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
The applicant submitted that there may have been a misunderstanding in relation to the questions asked about his travel around Vietnam with his spouse. The applicant submitted that there may have been a misunderstanding in relation to the evidence she had given, as well as a misunderstanding in relation to the evidence he had given. The applicant confirmed that the relevant reference in the Tribunal decision to that trip appeared in para.30, in the context of the Tribunal considering the nature of the household under a heading Shared Household.
There is nothing on the face of the reasons of the Tribunal to support the proposition that the Tribunal misunderstood the evidence of the sponsor, or of the visa applicant. There is nothing on the face of the reasons of the Tribunal that identified the trip referred to by the applicant as being material in the decision-making of the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal.
In relation to the grounds of the application, this is not a case where there was a love or emotional evaluation of the kind identified in Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303. The Tribunal did not misapply or misconstrue the Act or Regulations. There is no evidence that the Tribunal misconstrued or misapplied the relevant legislative provisions in assessing the application. The Tribunal’s findings were based on the Tribunal’s consideration of each of the relevant matters required under reg.1.15A(3) of the Migration Regulations 1994, and in accordance with s.5F of the Migration Act1958.
Insofar as the application seeks to cavil with the adverse findings, this Court has no power to engage in a merits review. I accept the first respondent’s submission that, on the face of the Tribunal’s decision, and the material before the Court, the review was conducted in accordance with Div.5, Part 5 of the Act and the dictates of procedural fairness.
I accept the first respondent’s submission that the adverse finding that the applicant and the visa applicant were not in a spousal relationship was reasonably open on the material before the Tribunal, and cannot be said to lack an evident and intelligible justification.
Ground 1 in the application fails to make out any jurisdictional error. Nothing said by the applicant identified any jurisdictional error. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 June 2016