Nirbhai v Minister for Immigration

[2015] FCCA 2833

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIRBHAI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2833

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – jurisdictional error – application for partner visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5; 474; 476(1); 476(2)

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163

Applicant: NIRBHAI NIRBHAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 444 of 2014

Judgment of: Judge Brown

Hearing date: 13 October 2015

Date of Last Submission: 13 October 2015

Delivered at: Adelaide

Delivered on: 23 October 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms Stokes

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Submitting Appearance

Solicitors for the Second Respondent: Not Relevant

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $6,825.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 444 of 2014

NIRBHAI NIRBHAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for the issue of constitutional writs in respect of a decision of the Migration Review Tribunal “the Tribunal” made on 31 October 2014. 

2. The Migration Review Tribunal has been abolished.  Its functions are now carried on by the Administrative Appeals Tribunal.  I will refer to the relevant decision maker, in these reasons for judgment, as “the Tribunal”. 

3. The decision relevant to these proceedings affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection not to grant the applicant Nirbhai Nirbhai a Partner (Residence) (Class BS) visa pursuant to the provisions of the Migration Act 1958 (Cth).

4. The applicant is a citizen of India, who came to Australia on a student visa granted on 7 August 2008.  That student visa was valid until 15 March 2011.  The applicant was born on 1 July 1982. 

5. The applicant married Ashlee Jade Ryan Frost, who was born on 6 March 1990, at the Adelaide Registry Office on 31 August 2011.  Ms Ryan Frost is an Australian citizen.  It is on the basis of this marriage and the relationship on which it was founded that the applicant applied for the partner visa, which is germane to these proceedings.

6. The applicant first applied for the visa in question on 30 September 2011.  The Minister’s delegate declined to grant the visa on the basis that the applicant did not hold a substantive visa more than 28 days prior to the lodging of his application and he had not provided compelling reasons to dispense with this condition.   This time limit applied to the visa as a consequence of the applicable regulatory regime.

7. This decision was subject to review by the Migration Review Tribunal on 12 March 2013.  On this occasion the Tribunal concerned considered that there were compelling reasons for dispensing with the relevant criteria. 

8. These compelling reasons related to factual findings made by the Tribunal at hearing that there was a subsisting and genuine relationship between the applicant and Ms Ryan Frost and she might suffer significant psychological hardship, if the applicant was compelled to leave Australia.  Ms Ryan suffers from a number of psychological conditions.

9. Accordingly, the Tribunal’s decision of 7 March 2013 was to remit Mr Nirbhai’s application for a partner visa, for reconsideration by the Minister and or his delegate. 

10. On 4 July 2013, a migration agent acting for Ms Ryan Frost wrote to the Department to inform it that Ms Ryan Frost no longer wished to sponsor the applicant’s visa application.  The correspondence in question further advised that the marriage between the applicant and Ms Ryan Frost was a sham.[1]

    [1]  See casebook at page 76

11. The applicant was invited to comment on this information and he did so.  The applicant refuted the allegation contained in the letter and asserted that he and Ms Ryan Frost continued to be in a relationship. 

12. On 30 December 2013, a delegate of the Minister found that the applicant did not meet the prescribed criteria for the visa stipulated in subclass 801.221 of the Migration Regulations 1994 primarily on the basis that there was no relationship between the applicant and his sponsor. 

13. This decision was subject to review, which was confirmed by the Migration Review Tribunal on 31 October 2014.  As previously indicated, it is this decision which is the subject of these proceedings.

The grounds of review

1. The applicant has prepared his own grounds for review, which were filed in this court on 27 November 2014.  The grounds of the application are as follows:

   “Review of Tribunal Decision.  I am not satisfied with it.  She did not considered true points to make decision.  My wife and me (spouse) we are together now and she refused saying we are not in relation any more.  My wife angry with me and going to her mother house and she sayin [sic] she lives with her mother in law.  Her mother in law is in India not here.  So my decision need to review and need to justify with true facts not false.  So I need it to be review by the Federal Court.”

The decision of the Tribunal

1. The applicant and Ms Ryan Frost gave evidence before the Tribunal.  The Tribunal summarised Ms Ryan Frost’s evidence as follows:

   “The applicant said that the sponsoring partner wanted to give oral evidence to the Tribunal because she does not want a bad outcome for him.

   The sponsoring partner gave the following oral evidence.  She said that she did not want to say much because she was nervous and in an awkward and messy situation.

   The Tribunal asked the sponsoring partner why she came to the Tribunal hearing.  She said she wanted to show support for the applicant.

   The sponsoring partner told the Tribunal that she had a baby by another man with whom she had a relationship after her relationship with the applicant had ended.

   The sponsoring partner said that she is not currently in a relationship with any one and that her focus is on her studies and her son and what’s right for her son.

   The sponsoring partner departed the hearing room at the conclusion of her evidence.”[2]

   [2]  See casebook at page 134 [16]-[21]

2. The Tribunal summarised the applicant’s evidence as follows:

   ·the sponsor withdrew the sponsorship when she was pregnant by another man with whom she now lives along with his mother;

   ·the applicant submitted a birth certificate of the child that named a third party as the father;

   ·the applicant did not know why the sponsor withdrew her sponsorship. She told him the pregnancy was the reason but he did not accept that. He gave evidence that he was trying to be in a relationship with the sponsor and that he loved her;

   ·the applicant did not have a court order granting him parental responsibility for the sponsor’s child and the sponsor had not died;

   ·the sponsor was sometimes ‘crazy’ when pregnant and although she had not physically harmed him, she had emotionally harmed him.

3. The applicable criteria relating to the grant of the visa in question are set out in regulation 820.21.  Erroneously, the Tribunal referred to regulation 801.221 in its decision but otherwise correctly elaborated the applicable criteria.  I accept that this was a typographical error of no consequence. 

4. In brief, the applicant was required to establish to the Tribunal’s satisfaction that he was in a marriage type relationship, with an Australian citizen or permanent resident, at the time of the application. 

5. However, the Tribunal accepted Ms Ryan Frost’s evidence that the relationship between her and the applicant had concluded.  It therefore found that Mr Nirbhai did not satisfy this requirement.  In my view, on the basis of the evidence available to it, particularly that of Ms Ryan Frost, this was a factual finding, which was clearly open to it.

6. Thereafter subclauses 3, 4, 5 and 6 of clause 820.211 provide circumstance in which the visa in question may be granted, notwithstanding the conclusion of the relevant sponsoring relationship. These particular circumstances can be summarised as follows: 

   ·The death of the sponsoring partner has occurred;

   ·The applicant or a dependent child has suffered family violence perpetrated by the sponsoring partner;  or

   ·The applicant and the sponsoring partner share custody, access or maintenance obligations in relation to any dependent child.

7. In the current case, the Tribunal found as follows:

   “In the present case there is no evidence before the Tribunal that the sponsoring partner has died or that the applicant has suffered family violence perpetrated by the sponsoring partner.  There is further no evidence and it has not been claimed in this case that the applicant has a dependent child.”[3]

   [3]  See casebook at page 135 [33]

The applicable legal considerations

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[4] 

   [4]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision.  As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act. 

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[5]

   [5]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[6]

   [6]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

Conclusions

1. I acknowledge that given his lack of representation and in the absence of legal training the applicant faced grave difficulties in mounting his application to the court.  In my view, his application is an inchoate plea for a merits rehearing.  As indicated above, I do not have jurisdiction to conduct a merits review. 

2. In my view, the findings of the Tribunal were open to it on the evidence available to it.  There is no reason to consider that the Tribunal’s factual conclusions can be considered to be irrational or illogical.  In my view, they were clearly open to it on the evidence provided by Ms Ryan Frost. 

3. In addition, in my view, although the Tribunal referred to an erroneous regulation, it considered the applicable legal considerations arising under the correct regulation.  It found that no special circumstances existed relating to such things as family violence or care of a child, which justified the granting of the visa in question. 

4. There being no discernible legal error, the application must be dismissed.  The first respondent seeks costs in the sum of $6,825.00.  In this case I accept that costs should follow the result. 

5. Given the abolition of the Migration Review Tribunal, I will make an order that the second respondent be replaced with the Administrative Appeals Tribunal.

6. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  23 October 2015