Rajak v Minister for Immigration

[2018] FCCA 3143

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAJAK v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3143

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal erred in construing compelling reasons – whether the Tribunal decision was unreasonable – whether the Tribunal erred in failing to give proper consideration to the applicant’s arguments – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Leave sought to amend grounds 4 and 5 of the application – leave granted.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), sub-cl.820.211(d)(ii) of sch.2, criteria 3001 of sch.3

Cases cited:

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 557

McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478

Applicant: MAHESH RAJAK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2198 of 2017

Judgment of: Judge Smith

Hearing date: 9 July 2018

Date of Last Submission: 9 July 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Solicitors for the Respondents: Ms M Donald, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2198 of 2017

MAHESH RAJAK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 21 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) subclass 820 visa.

Background

1. The applicant is a citizen of Nepal who arrived in Australia in June 2006 on a student visa.  On 27 January 2015 he lodged an application for a partner visa.  He was sponsored for the purpose of that visa by his partner, Ms Laurette Leba Ah Jack.

2. It was a criterion for the grant of the visa that the applicant satisfy the sch.3 criteria, and in particular that the application for the visa be made no more than 28 days after the expiry of the applicant’s last held substantive visa. That criterion could be waived if the Minister was satisfied that there were compelling reasons for not applying the criterion: sub-cl.820.211(2)(d)(ii) of sch.2 to the Migration Regulations 1994 (Cth).

3. On 22 June 2015, a delegate of the Minister wrote to the applicant noting that, at the time he lodged his partner visa application, he was not the holder of a substantive visa because his student visa had ceased on 8 August 2011.  The delegate then noted that criterion 3001 required that the application be made within 28 days after the substantive visa ceased unless the Minister was satisfied that there were compelling reasons for not applying that criterion.  The delegate then invited the applicant and his sponsor to put forward any claims they would like the Department to consider and in particular that they should explain in detail the circumstances that led the applicant not to be the holder of a substantive visa at the time of the application and any information relating to any compelling reasons that they consider might support his claims.

4. The applicant replied to this invitation on 29 July 2015 in a statutory declaration.  He stated that the compelling reasons for him not being able to lodge his partner visa application offshore was the fear of being harmed in Nepal by Maoists.  He also stated that he met his wife, the sponsor, in January 2008 and that they started living together as husband and wife in February 2012.

5. On 28 August 2015, a delegate of the Minister made a decision to refuse to grant the applicant a class UK visa.  The applicant applied to the Tribunal for review of that decision.

6. In written submissions to the Tribunal dated 3 December 2015 the applicant’s migration agents argued that there were compelling reasons for waiving the sch.3 criteria: in light of the applicant’s fear of being targeted by Maoists in Nepal; the additional expense that would be incurred by the applicant for having to travel to India to make a visa application; the political situation in Nepal; the undeclared blockade by India at the Nepal/India border; and the risk to the sponsor’s mental health due to increased anxiety and depression over the fear that her husband would be forced to return to Nepal.  In a further statutory declaration sent to the Tribunal with these submissions, the applicant restated his claim to fear harm at the hands of Maoists in Nepal.

7. On 2 June 2016 the Tribunal made a decision to affirm the decision of the delegate not to grant the applicant a class UK visa.  However, by orders made by consent in this Court on 9 September 2016 that decision was set aside and the matter remitted to the Tribunal for determination according to law.  The basis of that order was that the Tribunal had failed to deal with a clearly articulated claim arising from the consequences of the 2015 Nepal earthquake.

8. On 2 December 2016 the applicant’s agents sent a further submission to the Tribunal which raised the following for consideration in respect of the question of whether there were compelling reasons for waiving the sch.3 criteria: first, the applicant’s fear of harm at the hands of the Maoists; secondly, the consequences of the April 2015 earthquake in Nepal including the damage caused to the applicant’s family’s house; thirdly, the mental, emotional and physical impact upon the sponsor of the applicant having to depart from Australia; fourthly, the nature and length of the relationship between the applicant and the sponsor; and fifthly, the fact that the sponsor would be unable to travel with the applicant due to commitments in Australia.

9. The applicant and his sponsor also provided statutory declarations in support of those claims.

10. The applicant and the sponsor attended a hearing conducted by the Tribunal on 14 December 2016.  Amongst other evidence given by them, the applicant claimed that any lengthy separation would interfere with the couple’s plan to have a child and that the sponsor was worried about the safety and living conditions because of a warning to travellers from the Department of Foreign Affairs and Trade and also that she did not want to live alone.

11. On 19 January 2017 the applicant’s agents sent the Tribunal a statement from the applicant’s parents stating that, as a consequence of the damage suffered to their home in the earthquake they were living in a tent and were unable to accommodate the applicant who would thereby have to face other challenges on return to Nepal.

12. On 21 June 2017 the Tribunal made its decision to affirm the decision of the delegate.

Tribunal’s reasons

1. The Tribunal first noted that the applicant agreed that he had not complied with criteria 3001 because his visa application was made more than 28 days after the last day in which he held a substantive visa.  The issue then was whether there were compelling reasons for waiving that requirement.  In that respect the Tribunal noted, at [7], that the Regulations did not define the term “compelling reasons” but stated that they should be “sufficiently convincing to move the decision-maker to exercise the discretion to waive the criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of doing so”.

2. In spite of some doubts about the applicant’s evidence in respect of his relationship with the sponsor, it accepted that the sponsor was a convincing witness and accepted that they had been living together as a couple for some years: [10].

3. It also accepted that if the visa were not granted the applicant would be able to apply for another visa offshore but the processing time would be at least a year.  The Tribunal inferred that the applicant would return to Nepal for that purpose.  The Tribunal then examined the impact of the lengthy separation, the risk of harm to the applicant from, amongst other things, the Maoists; the sponsor’s concerns about safety and living conditions in Nepal; the consequences of the earthquake in April 2015; the applicant’s claim that he would be pressured to marry another person, and the sponsor’s living and financial circumstances in Australia. 

4. The Tribunal was not satisfied that the applicant was at any particular risk of harm if he returned to Nepal because of an incident that occurred many years ago.  It did not accept his concerns arising from his family’s political affiliations were well founded.  The Tribunal also considered that in light of information from the Australian government provided to travellers there was no issue about safety for the applicant if he were to return to Nepal to apply for a visa.

5. The Tribunal then summarised its findings in the following paragraphs:

   31.    The Tribunal accepts the evidence of a lengthy relationship and that Mr Rajak and Ms Ah Jack would suffer emotional hardship during a lengthy separation if the Schedule 3 criteria apply.  It also takes account of the current adverse circumstances that affect Mr Rajak’s family home and business in Nepal.  However, it does not accept he could not live independently of his family in Nepal and infers that, if necessary, Ms Ah Jack would provide him with a similar level of financial support as she currently provides.  Ms Ah Jack does not wish to live alone but is not able to move to live in her family home because it is already overcrowded.  However, she could live with others in her current home or in other shared accommodation, which would reduce the cost of accommodation and free up funds to assist Mr Rajak if that is necessary.  It might be that Mr Rajak’s family would pressure him to marry someone else if he lived in Nepal for a lengthy period.  Mr Rajak said that he would resist the pressure but the Tribunal accepts that it might cause some discomfort or conflict with family members.

   32.    Each of circumstances in the previous paragraph give rise to some hardship or difficulty for Mr Rajak and/or Ms Ah Jack. However, the hardship and difficulties are endurable and surmountable in each case and the cumulative effect is not so significant that it gives rise to compelling reasons to waive the Schedule 3 criteria.

   (Without alteration)

6. For those reasons, the Tribunal found that there were no compelling reasons to waive the sch.3 criteria and that the applicant did not satisfy sub-cl.820.211(2)(d)(ii) and so affirmed the decision under review.

Consideration

1. The applicant was granted leave at the hearing to rely on an amended application. Although there is some overlap between the five grounds in the amended application, it is convenient to deal with each of the grounds in turn.

First ground: error of law in determining “compelling reasons”

1. The Tribunal explained, at [7], what it understood was required in deciding whether there were compelling reasons for not applying the sch.3 criteria:

   The Regulations do not define the term “compelling reasons”. However, they should be sufficiently convincing to move the decision-maker to exercise the discretion to waive the criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of doing so.

   (Citation omitted)

2. The Tribunal referred to two decisions of the Federal Court of Australia in support of this statement: MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478 at [10] and Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 at [24].

3. While the applicant accepted that this was an accurate statement, he argued that the Tribunal had erred in its application of the test by requiring that there be hardships and difficulties which were unendurable and surmountable. This, it was argued was a gloss on the plain text of the legislation. I disagree with the premise of the argument.

4. The critical passage in the Tribunal’s reasons is at [32] where it said:

   Each of the circumstances in the previous paragraph give rise to some hardship or difficulty for Mr Rajak and/or Ms Ah Jack. However, the difficulties are endurable and surmountable in each case and the cumulative effect is not so significant that it gives rise to compelling reasons to waive the Schedule 3 criteria.

5. The Tribunal did not set a threshold for the requirement that there be compelling reasons. All it did was to explain why the circumstances were not compelling reasons even though it accepted that there may be difficulties or hardship. The fact that it used different words does not, itself, establish that it placed a gloss on the words of the criterion. Given the subjective nature of the term “compelling”[1] it is to be expected that different decision-makers will be satisfied that different circumstances will amount to “compelling reasons”. In each case, as here, it will be a matter for the decision-maker to explain why he or she was, or was not, so satisfied and an explanation that resorts only to the words of the criterion will not be of much assistance in that explanation.

   [1] See, for example, McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096.

6. For those reasons, the first ground is rejected.

Second ground: length of the applicant’s relationship with his wife

1. The applicant claimed that he and his sponsor had formed a relationship in February 2012, had moved into an apartment together in mid-2012 and were married in January 2015. The Tribunal accepted that the applicant and his sponsor had been living together as a couple for some years: [10]. The Tribunal took into account the fact that the relationship was lengthy and that that, together with the other circumstances accepted by it, would give rise to some hardship or difficulty; nevertheless, it was not satisfied that there were compelling reasons for not applying the sch.3 criteria: [31]-[32].

2. In ground 2 the applicant contends that the Tribunal ought to have considered that the length of the relationship by itself constituted compelling reasons within the meaning of sub-cl.820.211(2)(d). The only basis for this argument was a reference in the decision of Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 557 at [31] to the Explanatory Memorandum to the Statutory Rule by which the criterion was introduced. However, the statement in the Explanatory Memorandum concerning the length of relationships was not adopted as a correct statement of the law by Wilcox J in that case and adds nothing to a proper understanding of the criterion.

3. While it may be accepted, as suggested in the Explanatory Memorandum, that a relationship of over two years might give rise to circumstances that decision-makers will find are compelling reasons for not applying the sch.3 criteria, that does not mean that all decision-makers must make the same finding. As I have observed, the question is a subjective one and leaves to each decision-maker a very broad and evaluative decision to be made.

4. The second ground is rejected.

Third ground: unreasonable decision

1. The applicant asserts that the Tribunal acted unreasonably in four respects. The first of these concerned the length of the applicant’s relationship with the sponsor. The same arguments were made in respect of this matter in support of ground 2 and are rejected for the same reason.

2. The second matter relied on is the way in which the Tribunal dealt with the effects of the 2015 earthquake in Nepal. The applicant argues that the Tribunal simply brushed aside all matters dealing with the consequences of that natural disaster. That is not correct and, in any event, would be unlikely to vitiate the Tribunal’s decision.

3. The Tribunal accepted, at [21], that there were compelling reasons for not applying the criteria during the humanitarian crisis following the earthquake in Nepal in April 2015. However, it correctly proceeded to assess whether that was still the case at the time of its decision in June 2017. To this end, the Tribunal noted that it had asked the applicant about the current impact of the earthquake: [23]. It recorded the applicant’s response about his family’s living conditions, the cultural norm that meant that families lived together and the economic impact of the loss of tourism. The Tribunal accepted all of that; however, it found, at [24], that the cultural conventions would not make it impossible for the applicant to live separately from his family and, at [26], that his sponsor would be able to support him in Nepal as she was doing here in Australia.

4. The applicant argues that the Tribunal did not deal with the question of where the applicant would live and the degree of social stigma that living apart from his family in Nepal might bring to him. That is correct, but it did not have to. The Tribunal responded, as it had to, to the material that was before it. Far from brushing aside that material, as the applicant claims, it considered it and took it into account in determining whether there were compelling reasons for not applying the sch.3 criteria.

5. The third aspect of this ground is that the Tribunal “accepted that pressure on the Applicant marry someone else in Nepal would cause him discomfort and conflict with family members.” While it is true that the Tribunal accepted this particular claim (see [27]), it is not clear why that was unreasonable. The applicant did not explain this particular in either written, or oral submissions and the Court is left to guess how the acceptance of a factual claim can constitute unreasonableness. The best that can be said is that, having accepted the claim, the Tribunal ought to have accepted that it constituted compelling reasons. However, given the nature of that question as I have explained above, that is not a matter for the Court. The Tribunal considered it together with the other circumstances but did not find that they compelled it not to apply the sch.3 criteria: [32]. There was no error of any type involved in that reasoning.

6. The fourth particular of this ground is that the applicant’s sponsor was “an Australian citizen did not want to live alone and being separated would cause her upset”. The applicant argues that the Tribunal dealt with this as a purely financial matter that could be resolved by getting a flatmate. That is not an accurate summary of the Tribunal’s findings. First, the sponsor’s living arrangements were inextricably linked to her financial circumstances. The applicant claimed that it would be difficult for his sponsor to meet the rent if he went to Nepal and she said that she did not want to live alone. The Tribunal rejected the first of these (at [28]), suggesting that the applicant’s sponsor could find a flatmate to deal with loneliness and that this could also assist with any financial difficulty: [29]. Further, it accepted that the applicant’s sponsor would suffer emotional hardship during a lengthy separation (at [31]) but was not satisfied that that alone, or in combination with the other matters, amounted to compelling reasons: [32].

7. The applicant’s complaint is based on an inaccurate version of the Tribunal’s reasons. Contrary to the applicant’s assertion, the Tribunal did not simply deal with the emotional aspect of the couple’s separation as a financial matter, although it did deal with that part of the claim.

8. In addition to the pleaded matters, the applicant’s submissions raised a further matter which was said to establish unreasonableness. However, as the same argument was the basis for ground 4, it is appropriate to deal with it in that context. As will be seen, the argument is rejected.

1. The third ground is rejected.

Fourth ground: “self-serving and uncorroborated” evidence

1. The applicant argues that the Tribunal fell into jurisdictional error when it found, at [19], that his evidence about payments made by his father to Maoists was “unconvincing because it is self-serving and uncorroborated”. He contended that all evidence by an applicant is, by its nature, self-serving and that there is no requirement that evidence be corroborated.

2. There are several answers to these contentions: first, it is not true that all evidence is self-serving. It is often the case that a witness will give evidence that is contrary to his or her own interests. That fact can be taken into account in deciding whether the witness is telling the truth. Secondly, while it may be true that there is no need for corroborating evidence before the evidence of a party is believed, that does not mean, as a matter of logic, that the lack of corroboration cannot support an inference that the party’s evidence is “unconvincing” or not truthful. Thirdly, the Tribunal’s findings about the applicant’s evidence must be seen in the context of its other findings about the situation in Nepal.

3. The applicant claimed that one of the circumstances that supported the conclusion that there were compelling reasons for not applying the sch.3 criteria was that Maoists would kill him if he were to return to Nepal. He claimed that he had been attacked by them when he was there in 2010. The Tribunal found, at [17], that there had been a significant change in the political circumstances in Nepal and that the applicant’s historic experiences were not relevant to the time of decision. In spite of this, the Tribunal went on to consider the applicant’s evidence about what had occurred to him: [18]. Having set out that evidence, the Tribunal found, at [19], that, while such an incident was not unlikely in the past, it would be much less likely to occur in light of the change in circumstances. It then stated:

   [19] … The Tribunal asked Mr Rajak why he thought that Maoists would target him after such a long time and he said they told his family they are looking for him and his father is paying money to them regularly even though his business is in difficulty after the earthquake. ...

4. This was the evidence which the Tribunal found unconvincing because it was “self-serving and uncorroborated”. The Tribunal came to this conclusion in the context of its previous findings about the change in circumstances in Nepal and what amounted to a fresh claim raised by the applicant to address that change. There was nothing irrational or illogical about the Tribunal’s rejection of the applicant’s evidence.

5. The fourth ground is rejected.

Fifth ground: failure to give proper, genuine and realistic consideration to the representations and submissions of the applicant

1. This ground was, in effect, another way of putting all of the other grounds. It was contended that the Tribunal’s approach (as criticised in the other grounds) could also be characterised as a failure to carry out the function of reviewing the delegate’s decision. I reject that contention. As I have observed in respect of the previous grounds, the Tribunal responded to each of the contentions raised by the applicant in connection with the issue of the existence of compelling reasons, it understood the question to be asked in respect of that issue, and it properly answered that question by applying a correct understanding of what is meant by “compelling reasons” to the findings of fact which it had made on the basis of logically available inferences from the material before it.

2. The fifth ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     16 November 2018