RAM v Minister for Immigration
[2019] FCCA 3509
•4 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAM v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3509 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Applicant: | BITU RAM |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3751 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 4 December 2019 |
| Date of Last Submission: | 4 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Mr J Dadgar HWL Ebsworth |
ORDERS
The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
DATE OF ORDER: 4 December 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3751 of 2016
| BITU RAM |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 December 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa (“Partner visa”).
The applicant was found to be a citizen of India. On 4 June 2008, the applicant first arrived in Australia as the holder of a student visa which ceased on 20 October 2010. On 7 June 2012, the applicant applied for a protection visa. On 4 September 2012, the applicant’s protection visa was refused. That decision was affirmed by the Refugee Review Tribunal on 15 March 2013. On 24 April 2013, the applicant applied for Ministerial intervention. On 21 November 2013, the applicant was informed that the Minister would not consider that application.
From January 2014, the applicant remained an unlawful non-citizen until the lodging of the application for a Partner visa on 24 February 2015. The applicant and his sponsor were married on 2 November 2014.
The Delegate identified that, in the circumstances, the applicant had to meet the criteria in sch 3 to the Migration Regulations 1994 (Cth) (“the Schedule 3 criteria”). The Delegate found that the applicant could not satisfy criterion 3001 of the Schedule 3 criteria and determined that there were not compelling reasons not to apply the Schedule 3 criteria. On 26 November 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Partner visa.
On 15 November 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 2 November 2016, the Tribunal invited the applicant to attend a hearing on 24 November 2016 to give evidence to present arguments. By letter dated 24 November 2016, the Tribunal agreed to postpone the hearing to 2 December 2016. The applicant appeared on that date to give evidence and present arguments.
The Tribunal in its reasons identified the background to the application for review. The Tribunal summarised the applicant’s background.
The Tribunal considered whether the applicant met the criterion 3001. The Tribunal identified that the applicant’s last substantive visa ceased on 12 November 2010 and that the application for the Partner visa was not made until 24 February 2015. Accordingly, the Tribunal identified that the Partner visa application was not made within 28 days of the relevant period. Therefore, the Tribunal found that the applicant did not satisfy criterion 3001.
The Tribunal correctly identified that it had to consider whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal identified the reasons advanced by the applicant in support of there being compelling reasons.
The Tribunal referred to the sponsor having a medical condition at the time of application which required the support of the applicant and the applicant contending that the sponsor is dependent on his emotional and psychological support due to the sponsor’s psychiatric condition.
The Tribunal referred to there being no evidence of the sponsor’s claimed psychiatric condition provided at the time of application or with the submissions despite the applicant’s agent claiming that the sponsor had a medical condition. The Tribunal identified that no evidence was adduced about the care and support claimed to be provided by the applicant to the sponsor and that no evidence was adduced to support a finding that the sponsor would be unable to manage the psychiatric condition if the applicant were to depart Australia.
The Tribunal identified the other submissions advanced by the applicant. The Tribunal expressly referred to the issues identified as allegedly being compelling reasons given by the applicant, summarised in paragraph 25a. to paragraph 25d. of the Tribunal’s reasons, being put to the applicant at the hearing and inviting the applicant to address the same. The Tribunal found that the applicant did not advance any additional or new information.
The Tribunal referred to the applicant’s evidence that the sponsor is sick and he needs to be here. The Tribunal referred to there being no evidence of the illness.
The Tribunal referred to the applicant not living with the sponsor currently and, on the applicant’s own evidence, that he and the sponsor are currently experiencing problems in the marriage and had not lived together for six weeks.
The Tribunal referred to the applicant not having work rights, that the sponsor had been supporting him financially and that this had become a problem because he was asking her for money.
The Tribunal also noted that the applicant gave evidence that he and his wife still talk by phone and that she sometimes asks him how his immigration matter is going but that is the extent of the contact.
The Tribunal referred to having considered the applicant’s circumstances and those of the sponsor, both individually and cumulatively, up to the time of the decision. The Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.
Accordingly, the Tribunal affirmed the decision under review.
Before the Court
These proceedings were commenced on 29 December 2016. On 20 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant identified that he had been in Australia for a long time and enjoyed the culture and people. The applicant’s submissions from the bar table were, in substance, an invitation to this Court to determine the matter on compassionate or discretionary grounds. This Court has no power to decide the matter on compassionate or discretionary grounds. The applicant’s submissions otherwise invited impermissible merits review. The Court cannot review the merits.
Nothing said by the applicant identified any jurisdictional error in the conduct of the review or in the Tribunal’s decision.
Grounds of the Application
The grounds in the application are as follows:
1. The Tribunal erred in law as it failed to consider the applicability of cl 820.221 (3) to the facts of the case and evidence adduced
The applicant during the course of evidence had clearly stated that he is undergoing family violence. He also stated that the sponsor mentally harassed him and abused him on account of the fact that he had no work rights consequently no job .She often scolded him and this clearly portrays a situation of family violence. Without further questioning the self represented applicant more about the family violence related issues, the Tribunal brushes aside the evidence on record proving family violence. The Tribunal simply ignores his claim and evidence relating to family violence.
2. The Tribunal erred in law as it failed to correctly apply the test of “Compelling reasons” in order to waive the Schedule 3 requirements as per cl 820.211 of the Migrations regulations.
Particulars
The Tribunal while analysing the grounds for “Compelling reasons” failed to properly consider the evidence on record adduced before the delegate which dearly states that the sponsor is a victim of substance abuse. It is further stated that the applicant provides the moral and emotional support to the sponsor to get over this medical condition. Without considering these material on record adduced before the delegate, the Member observes in para 26 that no evidence of the psychiatric condition was adduced by the applicant. It is submitted that the Tribunal took irrelevant matters into consideration while deciding as to if “compelling reasons” exist for waiver of schedule III criteria.
Ground 1
In relation to ground 1, it alleges a failure to consider a relevant matter by the Tribunal and there is a reference to family violence. There is no evidence before the Court to support any such issue being raised before the Tribunal. An issue which was not raised before the Tribunal is not capable of giving rise to any jurisdictional error.
No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, the applicant alleges that there was a failure by the Tribunal to correctly apply the test of compelling reasons and a failure by the Tribunal to consider the evidence adduced.
The Tribunal’s reasons reflect an active intellectual engagement with the applicant’s claims and evidence. The Tribunal’s reasons expressly refer to the emotional support and the relationship between the parties, as well as the medical condition and the absence of evidence in respect of the same in relation to the sponsor.
There is no evidence that the sponsor was the victim of substance abuse. An issue not raised before the Tribunal is not capable of giving rise to any relevant error.
The applicant was initially invited to attend a hearing on 24 November 2016 by a letter dated 2 November 2016. In that letter, the Tribunal informed the applicant “We have considered the material before us but we are unable to make a favourable decision on this information alone.”
It is apparent that the Tribunal liaised with the applicant in respect of the issues in the course of the hearing. On the face of the evidence before the Court, the applicant had a real and meaningful hearing before the Tribunal. There is no irrelevant consideration that has been identified that the Tribunal took into account.
No jurisdictional error as alleged in ground 2 is made out.
Accordingly, as the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 December 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 27 February 2020
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