Pech v Minister for Home Affairs
[2019] FCA 728
•21 May 2019
FEDERAL COURT OF AUSTRALIA
Pech v Minister for Home Affairs [2019] FCA 728
Appeal from: Pech v Minister for Home Affairs [2019] FCCA 353 File number: WAD 68 of 2019 Judge: COLVIN J Date of judgment: 21 May 2019 Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Administrative Appeals Tribunal affirming delegate's decision to refuse temporary partner visa - where appellant advanced submissions that the Court should engage in judicial activism - where no jurisdictional error demonstrated - appeal dismissed Legislation: Migration Regulations 1994 (Cth) Schedule 2 cl 820.221 Cases cited: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Date of hearing: 21 May 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Appellant: Mr TM Lettenmaier Solicitor for the First Appellant: Sparke Helmore Lawyers Counsel for the Second Appellant: The Second Respondent filed a submitting notice save as to costs ORDERS
WAD 68 of 2019 BETWEEN: TARARITHY PECH
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
21 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant do pay the respondent's costs of the appeal to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
The refusal of Mr Pech's application for a temporary partner visa was affirmed by the Administrative Appeals Tribunal. The Federal Circuit Court dismissed the application by Mr Pech to review the Tribunal's decision for jurisdictional error.
Mr Pech says that his relationship with his spouse broke down due to what he describes as 'domestic disturbances of an unnatural kind'. They concern the activities of spirits and haunting and their consequences for the marriage. He accepts that his spouse did not support his application before the Tribunal.
The findings of the Tribunal were to the effect that Mr Pech's spouse was still alive, she was not violent towards him and there were no children of the relationship. Therefore, under the existing rules none of the exceptions that might apply to allow a temporary partner visa to be granted to Mr Pech without the support of his spouse apply to him: see Schedule 2 cl 820.221 of the Migration Regulations 1994 (Cth). He says that the Tribunal should have made findings about his claims concerning the domestic disturbances but the Tribunal instead found that it was not required to make any findings in that regard and thereby denied him natural justice. No error arose from the Tribunal's approach because the evidence could not establish a basis upon which Mr Pech might be brought within any of the statutory exceptions.
Mr Pech has expressed concern that the existing rules are unjust and unfair. He says they make the sponsor supreme because the sponsor is given exclusive power to stop sponsoring for any reason, reasonable or otherwise and then the applicant for the visa has to leave the country. (I note that since the refusal of his application Mr Pech has been allowed to remain in Australia on a bridging visa). Mr Pech also says that there must be occasions when instead of applications being tested against the existing rules, the existing rules are to be tested against the applications. He entreats the Court to engage in judicial activism.
The rules in this case are established by statute. Whatever the proper boundaries of the judicial role may be, they do not extend to ignoring or revising the law expressed by statute. Even in the case of what might be thought to be obvious error in expression there are limits: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [38]. The rule of law requires no less. There is only oppression and misery for a society where a judge can make and carry out the law as well as resolve disputes under the law. There may be a keenly felt sense of unfairness for a particular litigant whose case cannot succeed because of the terms in which a statute is enacted. However, that gives rise to a debate about whether there should be a different statute, not a debate about whether there should be a different result in the case to be decided by the judge.
As to the submissions advanced by Mr Pech to the effect that the legislation should be amended or changed so that his particular factual circumstance can be addressed or accommodated, the primary judge was correct to note that the Court was not in a position to assist him.
In his submissions today Mr Pech has asked the Court to extend some compassion as he is the primary carer for his 82‑year‑old grandmother who has no other relatives in Australia. He has been told that his separate application for a visa so he can continue to care for his grandmother in Australia can only be advanced from outside Australia and he is concerned about the difficulties for his grandmother if he has to leave Australia after being here for a number of years. These are matters which the Court has no power to address but I record them here so that the position is known to those who may be considering his position when it comes to any further visa application.
I note that Mr Pech also raised some complaints about his inability to work under his bridging visa but the application before the Tribunal concerned only the application for a temporary partner visa and therefore matters relating to the bridging visa cannot be raised in these proceedings.
The appeal should be dismissed with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. Associate:
Dated: 21 May 2019
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