Ram v Minister for Immigration

[2017] FCCA 687

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAM v MINISTER FOR IMMIGRATION [2017] FCCA 687

Catchwords:
MIGRATION – Application for Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa – review of decision of a delegate of the Minister for Immigration and Border Protection – whether the delegate’s decision was affected by error in not exercising the discretion to waiver criterion for the grant of a visa – applications visas not valid – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.45, 46, 47, 48

Migration Regulations 1994 (Cth), regs.2.07, 2.12, item 1124B, 1214C(3)(a) of Sch.1

Applicant: SHUSI LATA RAM

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1013 of 2016

Judgment of: Judge Smith

Hearing date: 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: Mr A Markus, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1013 of 2016

SHUSI LATA RAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant, who is a citizen of Fiji, married an Australian citizen in Fiji.  On the strength of that marriage, the applicant applied for an offshore partner visa; namely a Partner (Migrant) (Class BC) Subclass 100 visa.  In January 2002, the applicant was granted a provisional (Class UF) Subclass 309 visa.  The applicant came to Australia in December 2003 and has not left since then.  On 25 August 2006, a delegate of the Minister decided to refuse to grant the applicant a subclass 100 visa, and the applicant unsuccessfully applied to the Migration Review Tribunal[1] for review of that decision. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. On 20 April 2016, following the Tribunal’s decision, the applicant applied for two types of visas.  The first was a temporary visa; the Partner (Temporary) (Class UK) Subclass 820 visa, and the second was a permanent visa; Partner (Residence) (Class BS) Subclass 801 visa. 

3. The scheme of the Migration Regulations 1994 (Cth) in respect of these classes of visas outlined above is that applications for both visas are made at the same time, with the intention that the temporary visa be granted to allow a visa applicant to remain in Australia while the permanent visa application is considered. An application for one of those classes of visa cannot be made without an application for the other. In that way they are intimately intertwined.

4. On 21 April 2016, the day after the application was made, the delegate of the Minister notified the applicant that her application was invalid.  In her letter, the delegate explained:

   …

   Your application for a visa is invalid because it did not meet item 1124B(3)(e)(i) of Schedule 1 of the Migration Regulations 1994 (the Regulations). As a person to whom section 48 of the Migration Act 1958 (the Act) applies, that provision required that you must not have been refused any of the following visas since last entering Australia:

   (A) a subclass 100 (Spouse) visa;

   (B) a subclass 100 (Partner) visa;

   …

   (Emphasis in original)

Consideration

1. The applicant seeks judicial review of the delegate’s decision.  The grounds in her application are as follows (without correction): 

   (1)The Department failed to accept my application as under s.48 because of previous spouse visa refusal yet my current application should not be considered as invalid because it relates to an application with a sponsor who is my ex-husband and there are compelling and compassionate circumstances which were overlooked by the Department and the Department prevented me from looking at compelling reasons which relate to circumstances which occurred after time of refusal of first application.

   (2)I rely in this application on Federal Court of Australia decision Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, a copy of which I attach.

   (3)My application should not be treated as invalid as it is based on long term relationship which has been in existence for over 25 years.

2. These grounds are addressed to issues which can arise in the potential exercise of a discretion as to whether or not to grant a visa or to waive a criterion for the grant of a visa.  For reasons that will become clear, they are not relevant to the question of whether a visa application is valid. 

3. The critical question for the Court is whether contrary to what has occurred, the Minister was obliged to consider the applicant’s visa application. Section 47 of the Migration Act 1958 (Cth) provides that the “Minister is to consider a valid application for a visa”, but provides in s.47(3) that the “Minister is not to consider an application that is not a valid application”. The issue, then, is to be resolved by considering whether the application lodged by the applicant was a “valid application” within the meaning of the Act and the Regulations.

4. Of particular importance in this case is s.48(1) of the Act, which relevantly provides:

   Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

   A non-citizen in the migration zone who:

   (a)     does not hold a substantive visa; and

   (b)     after last entering Australia:

   (i) was refused a visa

   …

   May, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

5. Section 48(1) related to the applicant because she is a non-citizen in the migration zone who did not hold a substantive visa and was refused a visa after last entering Australia. Regulation 2.12 prescribes classes of visas for the purposes of s.48(1). The classes prescribed in that regulation include a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa.

6. At that level, pursuant to reg.2.12 and s.48(1), the applicant was able to make a valid application for a visa of those classes. However, s.48(1) notes that that entitlement is subject to the Regulations. Further, s.46(3) provides that that the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Section 46(4) provides that the Regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application.

7. Regulation 2.07 makes provisions for the purposes of ss.45 and 46 of the Act in circumstances where an application, like the present case, is required for a particular class of a visa. Sub-regulation 2.07(1)(c) provides that the relevant item in Sch.1 to the Regulation sets out other relevant matters to the application.

8. Schedule 1 to the Regulations is organised by reference to particular classes of visa.  Each class is given an item number.  Item 1124B relates to the Partner (Residence) (Class BS) visa, which, it will be recalled, is the permanent visa for which the applicant applied.  Subitem (3)(e) provides that:

   Subject to subitem (3A), if the applicant is a person to whom section 48 of the Act applies, the applicant:

   (i) must not have been refused any of the following visas since last entering Australia:

   a)  a Subclass 100 (Spouse) visa;

   b)  a Subclass 100 (Partner) visa;

   …

9. Item 1124B(3A) is not relevant to the applicant, because she does not claim to be a dependent child of a person who has met the requirements of (3)(e).  Those intricate provisions lead to the result that the applicant could not lodge a valid application for a Partner (Residence) (Class BS) visa, because she had been refused a subclass 100 visa after last entering Australia. 

10. Item 1214C applies to Partner (Temporary) (Class UK) visas.  Subitem (3)(a) of that item provides that an:  

    Application must be made at the same time and place as an application for a partner (Residence) (Class BS) visa.

11. The Minister submits that the effect of that provision is that where a valid application for a Class BS visa cannot be made pursuant to the scheme outlined above, the consequence is that a valid application for a Class UK visa, being the temporary visa, cannot also be made.  He submits that the word “application” in item 1241C(3)(a) must in its context be read as “valid application”.  I accept that that is the case.

12. As I have briefly outlined above, the two classes of visa are intimately intertwined, both in fact, if not in law, constituting a single application.  The purpose, indeed, as I have noted, of the Temporary (Class UK) visa is to allow an applicant to remain in Australia while the application for a permanent visa is determined.  It would be inconsistent with that purpose to construe item 1214C(3)(a) as enabling an application for a temporary visa to be made in circumstances where an applicant could never apply for a valid permanent visa, and therefore could never be granted a permanent visa. 

13. For those reasons, I accept the submission that the application for the Partner (Temporary) (Class UK) visa was also an invalid application.  Nowhere in the statutory scheme relating to the validity of applications is there to be found any discretion which in turn turns upon the application of considerations such as “compelling and compassionate circumstances”.  For that reason, the grounds in the application are, as I have said, not relevant to the issue to be determined by the court.  For those reasons, the delegate was correct to proceed on the basis that the two applications lodged by the applicant on 20 April 2016 were not valid applications, and so there was an obligation on the Minister not to consider those applications. The application for review will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  12 April 2017