Prempree v Minister for Immigration
[2017] FCCA 220
•17 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PREMPREE v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 220 |
| Catchwords: MIGRATION – Application for Partner (Temporary) (Class UK) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to take into account the duration of the applicant’s relationship with her spouse – whether the Tribunal failed to have regard to a relevant consideration concerning the living arrangements of the applicant and her spouse – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal failed to comply with its obligation under s.360(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 360, 425 Migration Regulations 1994 (Cth), cll.3001, 3002, 3003, sub-cl.820.211(2)(d)(ii) |
| Cases cited: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population & Communities [2013] FCA 782 |
| Applicant: | PHATTHARASINEE PREMPREE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1220 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 February 2017 |
| Date of Last Submission: | 9 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Tully |
| Solicitors for the Applicant: | K & T Legal Pty Ltd |
| Counsel for the First Respondent: | Mr N Swan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1220 of 2016
| PHATTHARASINEE PREMPREE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Thailand who first arrived in Australia on 5 June 2009. On 4 July 2012 she was granted a student visa which expired on 4 April 2014.
In May 2011 the applicant formed a relationship with an Australian citizen, Mr Hill. They were married on 26 September 2012.
One 16 May 2014 the applicant lodged an application for a Partner (Temporary) (class UK) visa on the basis of her relationship with Mr Hill. It was a criterion for the grant of that visa that the applicant satisfy sch.3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria: sub-cl.820.211(2)(d)(ii) of sch.2 to the Migration Regulations1994 (Cth).
Clause 3001 required that the visa application be validly made within 28 days after the relevant day. The relevant day was the last day on which the applicant held a substantive visa, namely, 4 April 2014.
On 14 January 2016 a delegate of the Minister made a decision to refuse to grant the applicant the visa on the basis that she did not satisfy the criterion in cl.3001 and he was not satisfied that there were compelling reasons for not applying that criterion. The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.
Tribunal decision
The issue for the Tribunal was whether there were compelling reasons for not applying the criterion in cl.3001. On 15 April 2016 the Tribunal made a decision to affirm the decision of the delegate on the basis that it was not satisfied that there were such compelling reasons.
The Tribunal noted, at [20] of its statement of reasons, that it did not consider that simply meeting other visa criteria in itself gave rise to compelling reasons to not apply the Schedule 3 criteria. In other words, the Tribunal proceeded on the basis that simply being in a spousal relationship was not sufficient to constitute compelling reasons within the meaning of the Regulations.
The Tribunal then considered the nature of the applicant’s relationship with her husband on the basis of the material and evidence put forward by them. This included the fact that for several years the applicant had been living apart from her husband for a number of reasons including financial circumstances and the consequence of the bushfires in Victoria in 2009. In this context, the Tribunal considered the submission made by the applicant that her husband had drawn great support from her during that period and was helped and supported by her through the difficult time. It stated that it had no reason to doubt that submission, however noted that such support was given in the context of a long distance relationship: [23]. In light of that, the Tribunal concluded that such support did not constitute compelling reasons not to apply the Schedule 3 criteria.
The Tribunal next considered the fact that the applicant operated a massage parlour business in Berry, a town near the south coast of New South Wales, and the submission that it would have to be closed down if the applicant were required to return to Thailand to lodge an offshore partner visa application. The Tribunal considered, for a number of reasons, that the applicant’s business interests in Australia do not constitute compelling reasons for not applying the Schedule 3 criteria. First, it found that it was speculative as to what would happen to the business if the applicant were to return to Thailand; secondly, there was no suggestion that any Australian citizen or permanent resident would lose employment if the business were to be closed; thirdly, while a significant financial commitment and business decision had been made by the applicant it was made at the time that she held a bridging visa when, given the nature of such a visa, such decisions were risky.
The Tribunal concluded that there was nothing about the particular nature of the relationship between the applicant and her husband, or the other circumstances relied upon individually or cumulatively by the applicant, that satisfied it that there were compelling reasons for not applying the Schedule 3 criteria. For that reason it was not satisfied that the applicant satisfied the criteria for the grant of the visa and so affirmed the decision of the delegate.
The applicant now seeks judicial review of the Tribunal’s decision.
Consideration
Ground one
The first ground in the application is that the Tribunal failed to consider a component integer of the applicant’s claim. The applicant argued that the Tribunal did not properly appreciate the significance to be attached to the duration of the applicant’s relationship in determining whether to exercise the waiver provision. Support was drawn for this submission from the fact that the applicant’s agent had made a submission to the Tribunal on the basis of the following extract from the Explanatory Statement that was issued by the Minister in connection with the Regulations which inserted cl.3001[1]:
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:
-where there are Australian-citizen children from the relationship; or
-where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
[1] Migration Regulations (Amendment) 1996 No.75 (Cth).
Two things may be noted about the agent’s submission: first, he did not include the whole of the relevant passage from the Explanatory Statement. He omitted the following sentence:
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
Secondly, the agent did make a submission which almost reflected that sentence:
In this instance the waiver is justified by the hardship which would result if the Schedule 3 criteria were not waived.
The difference between that submission and the omitted sentence is that the latter clearly reflects the fact that, even where there is a two year relationship, the decision-maker may not be satisfied that there are compelling reasons. In any event, the submission did not go so high as to say that the Tribunal was required to be satisfied that there were compelling circumstances simply because the relationship had been on foot for over two years.
In oral submissions, counsel for the applicant argued that the Tribunal had failed to grapple with the argument that the length of the relationship alone was sufficient to justify the conclusion that there were compelling reasons to waive the criteria. Before turning to consider this argument it is necessary to deal briefly with the applicant’s reliance on the Explanatory Statement as the source of some obligation imposed on the Tribunal.
Reliance on this statement wrongly elevates the Explanatory Statement to a statement of law which must be applied by the Tribunal. The statement has no legal effect and, even if it spoke in compulsory terms, it would not be binding on the Tribunal because it has no statutory force. In any event, contrary to the applicant’s argument, the statement relied upon only goes so far as to express an expectation rather than a requirement. For those reasons this aspect of the applicant’s argument is misplaced.
Returning to the applicant’s oral submissions, the effect of the agent’s submission was, as already noted, simply that the length of the relationship meant that there was sufficient hardship to warrant the conclusion that there were compelling reasons.
The Tribunal clearly took into account that possibility. First, it accepted the fact that the relationship had been in existence for at least two years: it recited the applicant’s evidence to that effect (at [11]) and expressed no disbelief of any of that evidence. Indeed, the fact that the Tribunal concentrated on the nature of the relationship suggests, that it accepted the existence and length of the relationship.
Secondly, the Tribunal found that there was “nothing about the particular nature of the relationship” that gave rise to compelling reasons for not applying the Schedule 3 criteria: [20]. Given that the Tribunal accepted that the relationship had been of at least two years’ duration, that fact must have been one part of the “nature of the relationship” referred to by the Tribunal. For that reason, it cannot be said that the Tribunal overlooked the argument raised by the applicant’s agent.
Counsel for the applicant rather bravely submitted that the Tribunal only considered the whole of the relationship, and not the particular fact that it was of two years’ duration. That argument is difficult to understand; however, it cannot succeed in light of the Tribunal’s express statement that it had “considered the circumstances individually and cumulatively”: [25].
In effect, the applicant’s argument came down to an assertion that the Tribunal had not properly appreciated “the significance to be attached” to the duration of the relationship. Understood in that way, the assertion was no more than an argument that the Tribunal should have given greater weight to the duration of the relationship. The weight to be given to the duration of the relationship was a matter that was left by the legislature entirely to the decision-maker and does not give rise to any cause for this Court to interfere with the decision of the Tribunal.
The first ground is rejected.
Ground two
The second ground is that the Tribunal failed to have regard to a relevant consideration, namely that people in a spousal relationship need not live together, provided that they do not live separately and apart on a permanent basis. Prior to the hearing this argument was made by reference to the definition of “spouse” in s.5F of the Migration Act 1958 (Cth).
The argument is based upon the weight given by the Tribunal to the fact that the applicant and her husband lived apart and had done so for a number of years. However, it is based on a misunderstanding of the Tribunal’s reasons.
The Tribunal made its decision on the basis that the applicant was the “spouse” of Mr Hill: see [20]. It did so even though the applicant and her husband were living separately: one in New South Wales, the other in Victoria. That suggests that the Tribunal did not overlook the fact that a person can be in a spousal relationship with another person even if they do not live together at all times.
In oral submissions, counsel for the applicant submitted that the genuineness of the relationship was relevant to the Tribunal’s decision and should have been taken into account. The Tribunal did not reject the genuineness of the applicant’s relationship with her husband. Indeed, it proceeded on the basis that it was genuine: it accepted that they were married, that there was a real reason for which they lived apart, and that the applicant had given her husband emotional support. In that way, it was part of the substratum of facts upon which the Tribunal assessed the relevant issue. It did not simply ignore that fact as suggested by the applicant.
Ground three
The third ground is that the Tribunal took into account an irrelevant consideration, namely, the fact that the applicant had purchased a business while holding a bridging visa. The applicant argued that the Tribunal was required only to consider reasons which were relevant to the purpose of permitting the applicant to make a spouse visa application in Australia: Monakova v Minister for Immigration & Multicultural Affairs [2006] FMCA 849 (“Monakova”).
The applicant submitted to the Tribunal that one of the factors to be considered in assessing whether there were compelling reasons for not applying the Schedule 3 criteria was the fact that she owned a business and that she may have to close it down if she were to return to Thailand. The Tribunal considered that submission but was not satisfied that those circumstances amounted to compelling reasons not to apply the criteria. One of the bases for which it reached that conclusion was explained as follows:
[24] … The tribunal further notes that Miss Prempree made a significant financial commitment to purchase the business while holding a bridging visa. The tribunal is [sic] not accept that significant financial commitment or business decision made while holding a bridging visa constitutes compelling reasons not apply the Schedule 3 criteria. Holders of a bridging visa have no guarantee or certainty that they will be granted permanent residency in Australia. In the tribunal’s view any financial decisions made while holding a bridging visa are clearly at the risk of the bridging visa holder. …
In summary, the applicant argued that the visa status of a person at the time of purchasing a business was not relevant to the purpose of permitting that person to make an application for a spouse visa in Australia.
The primary difficulty with the applicant’s argument is that it focuses upon the wrong aspect of the Tribunal’s reasons. The Tribunal was not determining whether the applicant’s status as a holder of a bridging visa amounted to compelling reasons not to apply the criteria but, rather, whether the potential impact that the need to leave Australia might have upon the applicant’s business amounted to such compelling reasons. It was in considering that question that the Tribunal had regard to circumstances surrounding the applicant’s acquisition of the business.
In Monakova Phipps FM (as his Honour then was) stated at [28]:
The “compelling reasons for not applying those criteria” must be reasons which are relevant to the purpose of the criteria. They must be relevant to the purpose of permitting the person to make an application for a spouse visa in Australia. To take into account a consideration which is not relevant to the purpose is to take into account an irrelevant consideration.
While his Honour focused on the immediate purpose of the criterion in question, he did not exclude, as part of the relevant purpose, to be considered the broader context of the purpose of the Migration Act as a whole. Even so, the Tribunal did not fall into the error identified by his Honour in that case.
The potential impact of departure from Australia on the applicant’s business was a matter put forward by her in support of her claim that the criteria be waived. That submission was clearly relevant to the purpose enunciated by Phipps FM in Monakova. If the applicant could remain in Australia to make a spouse application, she could continue to run her business and retain the value of the capital invested in it. If she could not stay in Australia, she could lose that opportunity and, potentially at least, all of her capital. That was the issue considered by the Tribunal. Accordingly, the third ground is rejected.
Ground four
The fourth ground is that the Tribunal failed to comply with its obligation under s.360(1) of the Act. The applicant argues that the Tribunal did not invite her to give evidence and present arguments in relation to the issue of whether the emotional support provided by the applicant to her husband should be considered in the context of a long distance relationship.
Section 360(1) of the Act requires the Tribunal in certain circumstances to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Although the issues that arise in relation to the review are to be identified by the Tribunal, unless the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are the issues arising in relation to the decision under review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 163 [35].
In this case the delegate’s decision was based upon the conclusion that there were no compelling reasons for waiving the Schedule 3 criteria. That was also, broadly speaking, the only real issue before the Tribunal. At the hearing conducted by the Tribunal on 12 April 2016 the Tribunal explained that it considered that this was the issue for resolution on the review[2]. At the hearing, the applicant gave evidence, apparently for the first time, that she and her husband spent extended periods apart[3]. The Tribunal explained that that was one of the matters that it needed to take into account[4]. In particular, it explained that if the applicant and her husband usually live separately and apart anyway it made the compelling test a little bit harder[5]. The applicant then gave some evidence to explain the reasons for which they were living separately.
[2] Transcript p.3.
[3] Transcript p.10.
[4] Transcript p.14.35.
[5] Transcript p.16.23.
When the applicant’s husband gave evidence, the Tribunal explained to him that one of the facts that he had to consider was the effect of people living apart[6]. After the Tribunal member had asked a number of questions of the applicant’s husband it asked him whether there was anything else he wanted to say[7]. The applicant then said a few more things before her agent made some submissions[8]. During the course of those submissions the Tribunal member again stated that the fact of not living together might make it a little bit harder to satisfy the criterion[9].
[6] Transcript p.17.21.
[7] Transcript p.26.7.
[8] Transcript p.27.
[9] Transcript p.29.5-29.10.
The course of the hearing made it quite plain that one of the issues to be considered by the Tribunal was the impact of the fact that the applicant and her husband were not usually living together.
The fact that the applicant and her husband were living apart was relevant to the Tribunal’s consideration because it went to the particular nature of the relationship between them and, critically, one of the possible consequences of a decision to refuse to grant the applicant an onshore spouse visa was that the applicant would have to travel offshore in order to obtain a spouse visa. That is, she would have to be separated for some time from her husband. In that context, the fact that the applicant was already living separately from her husband was clearly a matter that might impact upon the Tribunal satisfaction as to whether there were compelling circumstances to waive the Schedule 3 criteria.
After the hearing the applicant’s agent wrote to the Tribunal stating that further “discussions with the Applicant and Sponsor revealed further information” relevant to the case. That “further information” is contained in the email sent by the applicant’s husband in which he outlined various personal difficulties which he had undergone and the support given to him by his wife in respect of those difficulties.
The Tribunal referred to that submission in its statement of reasons and accepted the fact that the applicant’s husband had drawn emotional support from the applicant: at [23]. However, it stated that any such emotional support was in the context of a long distance relationship.
The applicant’s argument is based upon this last statement by the Tribunal. Ultimately, at the hearing, counsel for the applicant submitted that the new submission made by the applicant’s agent after the hearing necessitated a further hearing to be conducted by the Tribunal. I reject that argument.
In Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30 the Court addressed this issue in the context of s.425 of the Act which was in relevantly identical terms to s.360. It said, at [51]:
Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL.
…
The same reasoning applies here. The further information given to the Tribunal did not raise any new issue in the sense referred to in s.360. Rather, it added to the applicant’s case concerning her relationship with her husband.
Further, the Tribunal accepted the facts contained in the submission. The only way in which it now draws criticism from the applicant is that, in considering those facts, the Tribunal took into account the context of the long distance relationship. However, that long distance relationship was a matter put forward in the applicant’s own evidence at the hearing conducted by the Tribunal and it was obvious on the applicant’s own case that any emotional support given by the applicant to her husband had to be seen against the background of that fact.
The Tribunal is not required to put the applicant on notice of an obvious conclusion drawn from facts which was represented by the applicant in her own evidence. In any event, the applicant and her husband must have been aware during the hearing of the emotional support given by one to the other and they had the opportunity at that hearing to give evidence and present arguments about it and the context in which it occurred.
For those reasons there was no breach by the Tribunal of its obligations under s.360(1) of the Act. The fourth ground is rejected.
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.
I would add that, at the hearing I invited counsel for each party to notify my associate of any authority concerning the obligation of the Tribunal to invite an applicant to a further hearing. Counsel for the applicant appears to have misunderstood that invitation and, instead, sent further submissions to my associate. I have read the authority referred to in those submissions but have otherwise not given those submissions any attention: see Patel v Minister for Immigration & Border Protection [2016] FCCA 954 at [15] citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; Carr v Finance Corporation of Australia Ltd (No.1) (1981) 147 CLR 246; [1981] HCA 20 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [27]-[31] per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population & Communities [2013] FCA 782 at [2]-[5] and Singh v Department of Employment & Workplace Relations [2009] FCAFC 59 at [66]-[72].
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 17 February 2017
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