Nazir v MIBP
[2018] FCCA 861
•10 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAZIR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 861 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 5F Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration v Dunne [1999] FCA 204 Minister for Immigration v Sandhu [2016] FCA 130 |
| Applicant: | QASIM NAZIR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1986 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1986 of 2017
| QASIM NAZIR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction and background
The applicant, Mr Nazir, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Nazir a partner visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 3 April 2018.
Procedural history
Mr Nazir is a male citizen of Pakistan.[1] After several previous visits, he arrived most recently in Australia on 25 May 2010. He lodged an application for a different class of visa on 25 August 2010, which was refused and ultimately the subject of unsuccessful applications for merits and judicial review.[2]
[1] Court Book (CB) 7.
[2] CB 618 at [12].
After lodging an invalid application for a partner visa, Mr Nazir was ultimately granted a waiver of the “no further stay condition” on 23 August 2013.[3] He subsequently made a valid application for a partner visa on 23 December 2013.[4] Mr Nazir’s visa application was sponsored by his partner, Ms Ranjanna Nam (aka Ranjanna Murray), a citizen of New Zealand.[5]
[3] CB 1-5.
[4] CB 6-34. The copy of the visa application in the court book bears stamps indicating the document was received by the Minister’s Department on 28 May 2013, 10 December 2013 and 20 December 2013 (CB 6). The delegate (CB 141) and the Tribunal (CB 618 at [12]) referred to the application being made on 23 December 2013, which is the date adopted in these submissions.
[5] CB 26.
The application was refused by the delegate on 9 August 2016.[6] The delegate found that Mr Nazir did not meet, among other criteria, the criterion in clause 801.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That criterion, relevantly, incorporated the criterion in clause 3001 of Schedule 3. The delegate found that Mr Nazir did not meet criterion 3001 because his last substantive visa ceased to be in force more than 28 days prior to the making of his partner visa application. The delegate also found that there were not compelling reasons for not applying the Schedule 3 criteria.
[6] CB 141-147.
Mr Nazir subsequently applied to the Tribunal for review of the delegate’s decision.[7] Mr Nazir attended a hearing before the Tribunal on 24 May 2017.[8] Through his agent, he also submitted a large amount of documentary evidence, including letters, statements and statutory declarations from Mr Nazir, his sponsor, the sponsor’s daughter and from persons attesting to his relationship with the sponsor.[9]
[7] CB 135-136.
[8] CB 590-591.
[9] CB 196-206; 594-608.
The Tribunal affirmed the decision of the delegate in its decision of 26 May 2017.[10]
[10] CB 616-624.
The Tribunal found that Mr Nazir did not meet criterion 3001.[11] It then identified the relevant question as whether there were “compelling reasons” not to apply the criteria in Schedule 3 of the Regulations, including criterion 3001.[12]
[11] CB 621 at [39].
[12] CB 620 at [34] and 621 at [41].
After making a general observation that the evidence of Mr Nazir was “often incoherent, irrelevant, lacking in relevant detail and largely unreliable”,[13] the Tribunal went on to consider Mr Nazir’s claims relevant to whether there were compelling reasons justifying waiver of the Schedule 3 criterion.
[13] CB 620 at [35].
First, the Tribunal rejected Mr Nazir’s claim that he would be harmed if required to return to Pakistan.[14] In this regard, the Tribunal held:
a)Mr Nazir’s claims to fear harm had previously been tested and dismissed when he made his earlier visa application;[15]
b)the application of the Schedule 3 criteria would mean that Mr Nazir would have to apply for his partner visa offshore, it would not necessarily require him to return to his hometown in Pakistan where he claimed to fear harm;[16] and
c)Mr Nazir’s claim to fear harm at the hands of his family was inconsistent with the fact that his family continued to support him and continued to be in close contact with him.[17]
[14] CB 633 at [43]-[48].
[15] CB 662 at [44].
[16] CB 622 at [46]
[17] CB 622 at [47].
Secondly, the Tribunal did not accept the sponsor’s health problems constituted a compelling reason. The Tribunal found that there was no medical evidence to support the claim that the sponsor required surgery, and further found that the sponsor was able to look after her own health issues (which stemmed principally from a car accident in 2007) prior to meeting Mr Nazir.[18]
[18] CB 622 at [49].
Thirdly, the Tribunal held that the financial impact upon Mr Nazir and the sponsor’s logistics business did not justify waiver of the Schedule 3 criteria. The Tribunal held that the business was at a “fledgling” stage and generated “minimal” income. In those circumstances, and given the sponsor would have access to income and welfare support, the Tribunal found that any effect on the business was not a compelling reason to not apply the Schedule 3 criteria.[19]
[19] CB 623 at [51]-[52].
Fourthly, the Tribunal also rejected Mr Nazir’s submission that the sponsor would be unable to manage financially, physically or emotionally if Mr Nazir were required to leave Australia. The Tribunal noted in this regard that Ms Nam had three adult children, two of whom lived with her at home, able to provide support.[20]
[20] CB 623 at [53]-[54].
Fifthly, the Tribunal considered Mr Nazir’s claim that he and the sponsor had been in a genuine, ongoing and exclusive spousal relationship for almost five years. The Tribunal found it unnecessary to reach a concluded view about the relationship. In this regard, the Tribunal found: [21]
[T]he criteria [sic] in cl 820.211(2)(a) is that the applicant is the spouse or de-facto partner of the sponsoring partner. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl 820.211(2)(s)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl 820.211(2)(a). Accordingly, simply the fact that parties are in a genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria.
[21] CB 623 at [56].
In light of these findings, the Tribunal found that there were not compelling reasons not to apply the Schedule 3 criteria and, accordingly, affirmed the decision of the delegate.
The present proceedings
These proceedings began with a show cause application lodged on 23 June 2017. Mr Nazir continues to rely upon that application. The grounds in the application are that Mr Nazir’s business will suffer and will need organisation prior to departure from Australia and that he is in a genuine spousal relationship.
The application is supported by a short affidavit filed with it which I received.
I also have before me as evidence the court book filed on 12 September 2017.
Only the Minister prepared pre-hearing submissions in accordance with procedural orders made by a Registrar.
I invited oral submissions this afternoon from Mr Nazir, who was supported by his partner, Ms Nam. Mr Nazir asserts that the Tribunal showed pre-judgement giving rise to an apprehension of bias. He asserts that the Tribunal member at the hearing was rude.
Unfortunately, nothing was filed in accordance with order 2 made by the Registrar on 17 July 2017, which provided Mr Nazir with the opportunity to file and serve affidavit evidence, including a transcript of the Tribunal hearing. On the basis of the material before me, there is nothing to support the assertion of bias.
Mr Nazir and Ms Nam also made submissions concerning their relationship and the difficulties they would encounter if Mr Nazir is required to leave Australia.
They presented as a genuine and well-meaning couple. There are, no doubt, humanitarian considerations in this case which the Minister could consider if he was so minded. Those considerations are, however, beyond the scope of this proceeding.
On the basis of my analysis of the Tribunal decision, the only issue concerns the Tribunal finding at [56] of its reasons[22] that it was not necessary for it to come to a concluded view as to the genuineness of the relationship between Mr Nazir and Ms Nam.
[22] CB 623.
If the Tribunal had commenced its analysis with that proposition before considering any of the asserted compelling circumstances, I would have taken the view that the case should proceed to a final hearing. In the present case, however, the Tribunal identified at [42] of its reasons[23] the various matters advanced as constituting compelling reasons for waiving the Schedule 3 criteria. The Tribunal considered all of those apart from the genuine and ongoing nature of the spousal relationship.
[23] CB 621.
The Tribunal was, in my view, correct to find that, having dealt with all of the other asserted compelling circumstances, the genuineness or otherwise of the spousal relationship could not, of itself, constitute a compelling circumstance.
I otherwise agree with the Minister’s submissions.
Ground 1: marriage
As set out above, the Tribunal did not make any finding as to the genuineness and ongoing nature of the relationship between the sponsor and Mr Nazir. No error is revealed in this approach.
The Tribunal, correctly, noted that a criterion for the grant of a partner visa was that Mr Nazir be the spouse or de facto partner of the sponsor.[24] The definition of both a spousal relationship and a de facto relationship relevantly require that the relationship be “genuine and continuing”.[25]
[24] See clause 820.211(2)(a) of Schedule 2 to the Regulations.
[25] See ss.5CB and 5F of the Migration Act; CB 623 at [56].
Accordingly, the existence of a genuine and continuing spousal relationship was itself a criterion for the grant of a partner visa. A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa.[26] In the context of this case the Tribunal was correct to find, therefore, that the existence of a “genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria”.[27]
[26] Minister for Immigration v Dunne [1999] FCA 204 at [28]; Minister for Immigration v Sandhu [2016] FCA 130 at [55].
[27] CB 623 at [56].
Further, it should not be assumed that the Tribunal ignored or put to one side all aspects or incidents of the relationship between Mr Nazir and Ms Nam. The Tribunal had regard to the support which Mr Nazir claimed to give to Ms Nam.[28] This included consideration of the time period over which the support had been provided[29] referring to the fact that Ms Nam had, before the relationship commenced, been able to manage her injuries arising from a car accident. Thus, while the Tribunal did consider the relevant aspects of the relationship, it found that whether or not the relationship might be characterised as “genuine”, “ongoing” or “exclusive” was not relevant in circumstances where the existence of such a relationship was already a precondition to the grant of a visa.
[28] CB 622 at [49] and 623 at [54].
[29] CB 622 at [49].
Ground 1, therefore, discloses no arguable error.
Ground 2: business
There was very limited evidence before the Tribunal as to the business which Mr Nazir and Ms Nam claimed to operate. In a letter dated 17 May 2017, Ms Nam referred to their decision to become small business owners.[30] Mr Nazir also supplied a bank statement in the name of “Square Logistics Pty Ltd”.[31] Two of the persons who gave statements in support of the visa application also referred to lending money to, or investing in, the business.[32]
[30] CB 201.
[31] CB 259-262.
[32] CB 600 and 601.
The power vested in the Tribunal to dispense with the need to satisfy the Schedule 3 criteria is designed to create maximum flexibility.[33] Given the breadth of the power, and given the state of the evidence, it was logically open to the Tribunal to conclude that the Schedule 3 criteria should be applied in this case. There was a rational basis for the Tribunal’s conclusion, given the small size and limited income generated by the business, any harm to the business by reason of Mr Nazir being required to go offshore would likely have had limited wider financial consequences. Moreover, as the Tribunal noted, the position of Ms Nam would be protected by other sources of support, including welfare.
[33] Waensila v Minister for Immigration [2016] FCAFC 32; (2016) 241 FCR 121 at [2], [18] and [56].
Ground 2 fails to identify an arguable error.
Conclusion
I conclude that Mr Nazir is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, accordingly, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister’s actual costs are well in excess of $5,000. I have considered the application of the Court scale of costs at various points of time and have concluded that the appropriate course is to fix costs in the sum of $3,606 and I so order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 April 2018
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