Nanuan v Minister for Immigration
[2017] FCCA 2662
•2 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NANUAN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2662 |
| Catchwords: MIGRATION – Partner (temporary) (class 820) visa – domestic violence – intervention order – applicant and sponsor not in a “married relationship” as defined – no “judicially determined claims of family violence”. |
| Legislation: Migration Act 1958 (Cth), ss.5F(2), 376 Migration Regulations 1994 (Cth), reg.1.24, sch.2, 801.22, 820.21, 820.22, 820.211, 820.221 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 |
| Applicant: | VARINDER SINGH NANUAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1558 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 12 October 2017 |
| Date of Last Submission: | 12 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the first respondent: | Mr G Hill |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed 8 July 2015 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1558 of 2015
| VARINDER SINGH NANUAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this court on 8 July 2015, the applicant sought judicial review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made 11 June 2015 pursuant to which the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a partner (temporary) (class 820) visa.
While giving no particulars of his grounds, the applicant contended before me that the decision of the Tribunal –
a)took account of irrelevant considerations;
b)erred at law; and
c)failed to take into account relevant considerations.[1]
[1] Application filed 8 July 2015.
The Tribunal found that the applicant failed to satisfy cl.820.221(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the regulations”). The applicant contended that the Tribunal fell into jurisdictional error in reaching that conclusion. The question in this case was whether the Tribunal in fact fell into jurisdictional error.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error. The Tribunal’s decision was proper. The applicant failed in this case. I dismiss this application and order the applicant to pay the Minister’s costs.
Short factual snapshot
The applicant was born in India in 1988. He arrived in Australia on 8 September 2008 on a student visa. He married Ms Pillay, an Australian citizen, on 8 October 2013. On 29 January 2014 the applicant applied for a partner visa. Ms Pillay was the applicant’s sponsor. The subclasses relevant to the applicant’s visa application were –
a)temporary (subclass 820); and
b)residence (subclass 801).
Pursuant to the regulations the applicant needed to satisfy different criteria at different times. At the time of applying for the subclass 820 visa, the applicant had to meet the criteria set out in item 820.21 of schedule 2 of the regulations. At the time of the decision on the applicant’s subclass 820 application the applicant had to satisfy the criteria set out in item 820.22 of schedule 2. The criteria to be satisfied at the date of decision for a subclass 801 visa was set out in
item 801.22 of schedule 2.
On 3 February 2014 the Department of Immigration and Border Protection (“the department”) wrote to the applicant seeking information about whether the applicant was the spouse of his sponsor. The applicant’s representative responded to that letter by addressing a “compelling reasons” submission and stating that the “applicant’s being together with his partner has been extremely essential for the wellbeing of his partner”.[2]
[2] Court Book filed 4 March 2016 at p.96.
On 16 May 2014 the sponsor notified the department of the breakdown of the marital relationship between the applicant and the sponsor and provided a copy of an intervention order obtained by the sponsor against the applicant.
On 22 May 2014 the department wrote to the applicant informing him that the department had received information that he and his sponsor were no longer living in a partner relationship. The department requested his response.
The applicant’s representatives sought a week to 10 days within which to respond. The relevant case officer refused that request.
On 2 July 2014 the Minister’s delegate refused the applicant’s application for a partner (temporary) (subclass 820) visa and the delegate refused the applicant’s application for a partner (residence) (subclass 801) visa.
On 27 July 2014, the applicant applied to the Tribunal for a review of the delegate’s decision concerning the subclass 820 decision. It seems that the applicant did not pursue the subclass 801 application.
On 20 May 2015 the applicant provided the Tribunal with a submission that incorporated his version of events in relation to the intervention order. In that submission the applicant claimed that he had suffered what he described as “unfair family violence”.[3] He provided further material about Ms Pillay’s intervention order.
[3] Court Book file d4 March 2016 at p.179.
On 28 May 2015, the Tribunal conducted a hearing of the applicant’s application for the 820 visa at which the applicant gave evidence through an interpreter.
The Tribunal’s decision
The Tribunal affirmed the delegate’s decision not to grant the applicant a partner (temporary) (subclass 820) visa. Relevantly paraphrased, the Tribunal’s main reasons for refusing the visa application were as follows –
a)since the visa application was lodged, the applicant’s relationship with the sponsoring partner had ceased;
b)in May 2014 the sponsor withdrew her sponsorship, the couple ceased living together and they had no contact thereafter;
c)a 12-month intervention order had been ordered against the applicant in May 2014;
d)at the time of the decision the applicant was required to satisfy the elements of clause 820.211 or he had to show he came within clause 820.221 (2) or (3);
e)
as to clause 820.211, the applicant did not meet that clause because he and the sponsor were not in a “married relationship” as defined in section 5F(2) of the Migration Act 1958 (Cth)
(“the Act”);
f)as to clause 820.221(2) the Tribunal said it was not applicable as the evidence did not reveal that the sponsor was dead; and
g)as to clause 820.221(3), the Tribunal found that the applicant did not meet the evidentiary requirements of regulation 1.24 as there was not a “judicially determined claim of family violence”.
The Tribunal found there was no claim of family violence before it.
The Tribunal affirmed the delegate’s decision.
In this Court
In the passages above I have set out the grounds of review on which the applicant relied in this case. All were unparticularised. All gave no content. None indicated the precise way the applicant said the Tribunal fell into jurisdictional error.
Consistent with my duties in an application for judicial review, I have carefully examined the Tribunal’s reasons in this case against the material then before it and against the applicable provisions of the Act and the regulations. Far from the Tribunal falling into jurisdictional error, it seemed to me that the Tribunal –
a)correctly identified the relevant subclass of visa for its consideration as being subclass 820;
b)correctly assessed whether the applicant met the requisite elements applicable to a subclass 820 visa application, especially whether the applicant was in a relationship with the sponsor;
c)correctly assessed whether the elements of family violence had been made out; and
d)correctly considered that the applicant had not sworn or affirmed a statutory declaration setting out his claims.
In my view, the Tribunal made no error. Its decision was sound and correct.
I detected no jurisdictional error on any of the grounds asserted or at all.
The section 376 certificate
A large amount of the time devoted to my hearing of this case was taken up with an issue that emerged from the provision by the delegate with a certificate under s.376 of the Act. In essence, the delegate certified that certain documents in the departmental file had been provided in confidence to the department as the sponsor had concerns for her safety. The delegate’s certificate under s.376 was dated 18 August 2014. Details of the s.376 certificate were given by affidavit by Mr Cunynghame, who regularly appears in this Court as an advocate for the Minister in judicial review applications.
Mr Hill of counsel, with his customary helpfulness and legal incisiveness took me to several aspects of the s.376 certificate, consistent with the Minister’s obligations as a model litigant. I record my gratitude to Mr Hill for those careful submissions.
The Minister said that under s.376 (3)(b) of the Act, the Tribunal was empowered, in its discretion, to disclose to the applicant the material covered by the s.376 certificate. However, in this case on
28 August 2014 the applicant applied to the department under the Freedom of Information Act 1982 (Cth) seeking access to “all the documents that [he] submitted in regard to [his] partner visa and work permit applications”.[4]
[4] First respondent’s contentions of fact and law filed 5 October 2014 at para.39.
In response to that freedom of information request, the department decided to release the whole of its file to the applicant except for two documents, namely the 16 May 2014 letter and the file note dated 22 May 2014. The s.376 certificate and the other file notes covered by the certificate were disclosed to the applicant.
Mr Hill submitted that the two documents were not disclosed to the applicant, citing various decisions of the Federal Court of Australia including Minister for Immigration and Border Protection v Singh,[5] MZAFZ v Minister for Immigration and Border Protection[6] and BZADJ v Minister for Immigration and Border Protection.[7] Mr Hill correctly submitted that jurisdictional error may be established if the Tribunal were to act on information covered by the certificate that had not been disclosed to the applicant.
[5] (2016) 244 FCR 305.
[6] (2016) 243 FCR 1.
[7] [2017] FCA 853.
Here, according to Mr Hill, the sponsor’s 16 May 2014 letter and the file note dated 22 May 2014 were not disclosed to the applicant before the Tribunal made its decision. In his verbal submissions Mr Hill refined the issue so that he argued that the critical document not provided to the applicant was the letter. Mr Hill said the letter was among the material in the court book. However, he recognised that the relevant point in time, for procedural fairness purposes, was the date of the Tribunal’s decision and Mr Hill conceded that the letter dated 16 May 2014 was not before the Tribunal. However, he submitted that it did not matter because the thrust of the letter was to the effect that the sponsor stated that her relationship with the applicant was over, a proposition that corresponded precisely with the applicant’s own evidence on point – namely, that the relationship between the applicant and the sponsor was over. Mr Hill said that by not showing the applicant that letter, there was no loss of opportunity for the applicant to have obtained a successful outcome because the content of the letter was the very substance of the case the applicant was advancing.
I agree.
The Honourable Justice Barker made observations about there being no loss of opportunity and therefore no want of procedural fairness in AVO15 v Minister for Immigration and Border Protection.[8] To like effect were my observations in Chhor v Minister for Immigration and Border Protection.[9]
[8] [2017] FCA 566.
[9] [2017] FCCA 2135.
To my mind, despite the fact that the relevant letter may have not been before the Tribunal, the substance of it was consistent with the applicant’s own case and to that end, the applicant did not lose any opportunity to obtain a successful outcome by reason of the absence of that letter. After all, the gravamen of the letter was a significant plank in the applicant’s own case.
While the applicant did not take any point in relation to the certificate given pursuant to s.376 of the Act, in my view there was no procedural unfairness involved.
Conclusion
For those reasons I dismiss the applicant’s application to this Court and order him to pay the Minister’s costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 2 November 2017
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