Ranouta v Minister for Immigration
[2019] FCCA 2118
•2 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANOUTA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2118 |
| Catchwords: MIGRATION – Compelling circumstances – schedule 3 criteria – whether the Tribunal ignored relevant considerations – whether compelling reasons is an evaluative exercise – whether ‘weighing up’ compelling reasons is jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.476(1). Migration Regulations 1994 (Cth), Sch.2 cl 820.211(2)(a), (2)(d)(ii) and Sch.3 criteria 3001, 3003, and 3004. |
| Cases cited: Choi v Minister for Immigration and Border Protection [2018] FCA 291. |
| Applicant: | GUPREET SINGH RANOUTA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2511 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 21 May 2019 |
| Date of Last Submission: | 14 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | AR Law Services |
| Counsel for the Respondents: | Mr Minson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application filed 18 November 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2511 of 2016
| GUPREET SINGH RANOUTA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 18 November 2016 and amended 8 May 2019 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (‘the Tribunal’) made on 20 October 2016. The Tribunal’s decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Partner (Temporary) (Class UK) visa (‘the visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’).
The applicant appealed the Tribunal’s decision on 18 November 2016.
The applicant’s original application contained 14 grounds.
The applicant’s amended application, filed after the Minister’s submissions, contained two alternate grounds:
1. The Tribunal ignored a relevant consideration in purporting to apply clause 820.211(2)(ii) of schedule 2 of the Migration Regulations in that if criterion 3001 of schedule 3 of the Migration Regulations 1994 were not waived, the applicant would have to go offshore to lodge a spouse visa thereby causing the couple to be separated and the Tribunal failed to consider that after Mrs Kaur gave birth, she would need her husband's support and presence in Australia.
2. The Tribunal misconstrued clause 820.21(2)(d)(ii) by treating its task as a weighing exercise, rather than as an evaluative exercise: the Tribunal weighed up the applicant's conduct in respect of his protection claims and long unlawful migration status in Australia against factors in favour of waiver. Instead, the Tribunal should have considered whether there were compelling reasons to waive compliance with the schedule 3 criteria.
Background
The applicant is a male citizen of India and was born 17 December 1986.
The applicant’s application is based upon his relationship to his wife (‘the sponsor’).
The applicant summarises the events leading to his marriage in his application for the visa lodged 2 May 2016:
[My wife and I] started to talk to each other for first time during December 2015. We spoke to each other many times and liked each other. I advised [the sponsor] to meet me in Melbourne. In Jan 2016, [the sponsor] came to Melbourne and we met at Melbourne Airport for the first time.
We visited a temple and exchanged rings. After that [the sponsor] went to India for 3 months and she met my family members over there.
She came back to Australia on 7 February 2016 and we got married on 24 April 2016.[1]
[1] Court book 17.
The applicant was contacted on 9 May 2016 by the Department of Immigration and Border Protection (‘Department’) (as it then was). The Department noted:
When you lodged your Partner visa application you were not the holder of a substantive visa because your Student visa (subclass 572) ceased on 10 February 2010.
For Partner visa applications lodged within Australia, the Migration Regulations state that, if you are not the holder of a substantive visa at the time of lodging your Partner visa application, you must satisfy additional Schedule 3 criteria (specifically, each of criteria 3001, 3003 and 3004), in addition to satisfying the standard Partner visa criteria. Schedule 3 criteria does not apply to offshore Partner visas, and failure to satisfy Schedule 3 does not prevent you from lodging a Partner application outside Australia.[2]
[2] Ibid 74.
The Department further stated that:
Criterion 3001 requires that an application was made within 28 days after your substantive visa ceased. You do not meet criterion 3001, however the Migration Regulations allows the Schedule 3 criteria to be waived where there are compelling reasons for not applying those criteria.[3]
[3] Ibid 74.
This letter from the Department also invited the applicant to provide further information establishing whether there were compelling reasons to waive the Schedule 3 criteria.
The applicant, via a representative, provided further information on 6 June 2016. This included:[4]
[4] Ibid 79-80.
1. Client statement – Schedule 3 Waiver request
2. Medical Certificates – GP
3. Relationship Proofs – Letters
4. Greeting Cards
5. Motel Receipt
6. Photographs
7. Driver’s License Copy
On 30 June 2016 the Delegate refused the visa application.
On 21 July 2016 the applicant applied to the Tribunal for the Tribunal to review the Delegate’s decision. Attached to this were the sponsor’s medical documents.
Further documents were supplied to the Tribunal on 29 July 2016 and 25 September 2016.
On 27 September 2016 the applicant was invited to appear before the Tribunal on 19 October 2016.
The applicant accepted this invitation on 29 September 2016, and provided further supporting documents on 6 October 2016 for this hearing.
On 19 October 2016 the applicant appeared before the Tribunal to give evidence and present arguments.
Tribunal’s decision
On 20 October 2016 the Tribunal affirmed the Delegate’s decision refusing to grant the visa.
The Tribunal set out the requirements to satisfy criterion 3001 – namely that the applicant must lodge their application within 28 days of the substantive visa ceasing. As the applicant did not have a substantive visa since 10 February 2010 and the application was lodged on 2 May 2016, the 28 day period had passed.
The Tribunal then set out at [17] what it must consider when considering compelling reasons:
a)per Waensila v Minister for Immigration and Border Protection [2015] FCA 1259, compelling reasons may arise at any time, even after the application has been made; and
b)per Sidhu v Minister for Immigration and Border Protection [2014] FCCA 167, a genuine relationship may be insufficient on its own to justify a waiver of the Schedule 3 criteria;
The Tribunal then set out the applicant’s claims that his circumstances are compelling because:
a)the sponsor is 20 weeks pregnant;
b)the sponsor will suffer emotional distress and hardship if she was separated from the applicant;
c)the sponsor was financially, emotionally and physically supported by the applicant; and
d)the sponsor suffers from depression.
At [19], the Tribunal, prior to considering evidence regarding the sponsor’s mental and physical health and her pregnancy, considered the applicant’s conduct, in particular his migration history. The Tribunal set out the applicant’s migration history, noting that he had been in Australia since May 2009, had spent significant periods without a visa (including between 23 July 2012 and 5 May 2016) or pursuing merits review.
The Tribunal then considered whether there were compelling reasons to waive the Schedule 3 criteria. The Tribunal:
a)noted the applicant’s extensive migration history, that the applicant’s migration history has been described as “deplorable” and that his migration history demonstrated ‘a complete failure to abide by [his] visa conditions or engage with the Department if the circumstanced d[id] not suit [his] agenda’;[5]
b)considered the applicant’s previous claims that his parents had been murdered by his uncle, which he now admits are false;[6]
c)considered the timing of his claim that his parents had been murdered when he was about to be deported;[7]
d)considered the applicant’s claims to the Refugee Review Tribunal (‘RRT’) to be homosexual, a claim that the applicant both denied and when challenged with evidence, claimed not to have understood the question (despite providing specific details to the RRT of the sexual acts to prove he was gay);[8]
e)noted that the applicant had asked the Department on 19 July 2012 that if he married his girlfriend, whether he could remain in Australia;[9]
f)in relation to the sponsor’s health, noted that the sponsor had said that she suffered morning sickness, lower back pain and has occasional migraines but that otherwise the pregnancy was progressing normally;[10]
g)noted the sponsor, despite only visiting the psychologist once in 2016 where she received a Cognitive Behaviour Therapy referral and having a medical certificate indicating that she was not fit for work for several days, claimed to be depressed when she is not with the applicant and that she would “breakdown” without him;[11]
h)was not satisfied, due to the sponsor’s generalised comments, that the applicant was the source of support the sponsor claimed in relation to the sponsor’s physical and mental health and her well-being vis-à-vis her pregnancy;[12]
i)was not satisfied that the sponsor requires significant care or assistance despite her experiencing some pregnancy related issues;[13] and
j)found that there was no evidence that the applicant financially supported the sponsor as the evidence before the Tribunal was that the applicant had held no work rights since 10 February 2010 and although he had been given work rights in September 2016, he had not been employed and had no income from other sources.[14]
[5] Tribunal’s decision record dated 20 October 2016 [21].
[6] Ibid [21]-[22].
[7] Ibid [22].
[8] Ibid [21]-[22].
[9] Ibid [23].
[10] Ibid [25].
[11] Ibid [25]-[26].
[12] Ibid [27].
[13] Ibid [27].
[14] Ibid [28].
The Tribunal in relation to the factors that were submitted by the applicant to weigh in favour of the Schedule 3 criteria stated, ‘when properly examined, those factors do not weigh strongly in favour of waiver’.[15] The Tribunal also weighed up the Tribunal’s findings in relation to the applicant’s conduct with respect to his protection claims and ‘his long unlawfulness in Australia’.
[15] Ibid [29].
The Tribunal, therefore, was not satisfied there were compelling reasons to waive the Schedule 3 criteria and affirmed the Delegate’s decision.
Grounds of review
Applicant’s submissions
Ground 1 – Ignored a relevant consideration
The applicant alleges that the Tribunal ‘missed the point that the most obvious and compelling reason why the Schedule 3 criteria should be waived was because otherwise the applicant’s wife would be left holding the baby alone in Australia in his absence’.[16]
[16] Applicant’s submissions filed 8 May 2019 [13].
The applicant asserts that the Tribunal confined its consideration to the period of the pregnancy, ‘treating the pregnancy as if it was a health issue and not something that would result in a child that the couple would need to care for’.[17]
[17] Ibid [14].
Ground 2 – weighing or evaluation exercise
The applicant asserts that the Tribunal’s role is to determine whether it is satisfied there were compelling reasons, not to weigh up competing factors. The applicant puts it this way:
Instead of doing its correct job of considering whether there were compelling reasons for granting a visa, the Tribunal weighed up factors in favour and against of waiver. That was simply not the correct task that faced the Tribunal.[18]
Respondent’s submissions
[18] Ibid [23].
Ground 1 – Ignored a relevant consideration
The Minister asserts that the Tribunal did consider the post-pregnancy time period and that the applicant misunderstands the nature of a relevant consideration.
The Minister asserts that [25] of the decision record contains evidence of the Tribunal considering the applicant’s need for support post-birth. The Minister places weight on the words ‘in a few months’ in the sentence:
In terms of the pregnancy, both said that the sponsor needs the applicant here in Australia beside her most particularly because she will not be able to work in a few months and she will need him to provide for her financially.[19]
The Minister asserts that in context, the words ‘in a few months’ could not refer to anything other than the sponsor’s claim that she would need the applicant’s support post the delivery of their child.
[19] Tribunal’s decision record dated 20 October 2016 [25].
The Minister contends that not referencing the post-birth period in other sections is not indicative of error, as ‘it is not necessary for the Tribunal to address every single claimed circumstance individually in order for it to have given genuine and proper consideration to the totality of the applicant’s circumstances’.[20] The Minister claims that the Tribunal’s consideration of the post-birth period is subsumed within its consideration.
[20] Respondent’s submissions in Reply filed 17 May 2019 [4]; citing from Choi v Minister for Immigration and Border Protection [2018] FCA 291 [16] (Allsop CJ).
The Minister further alleges that the focus on the pre-birth period is not unreasonable; it merely reflects the case advanced by the applicant.
The Minister lastly argues that it is not clear how long the applicant would be out of Australia, and therefore the Tribunal was not required to make a finding that the applicant would have been out of Australia either before or significantly after the birth.
The Minister, alternatively, argues that the applicant has mischaracterised the nature of a relevant consideration. The Minister puts it that a failure to consider a relevant ground is only made out if the Tribunal is required to consider making that decision. In this instance, the Tribunal was not required to consider the post-birth period as the regulations do not prescribe any considerations that the Tribunal must consider.
The Minister submits that there was no allegation of legal unreasonableness or serious irrationality and therefore ‘the applicant’s first ground is in reality no more than a complaint that the Tribunal did not consider his circumstances to be sufficiently compelling’.[21]
[21] Respondent’s submissions in Reply filed 17 May 2019 [8].
Ground 2 – weighing or evaluation exercise
The Minister asserts the applicant’s argument relies on a false premise that there is a distinction between weighing up factors and an evaluation exercise.
The Minister notes that the applicant did not cite any authority for the distinction, and asserts that in contrast, authority favours the Minister’s position.
The Minister further asserts that the Tribunal used the word ‘weigh’ as a comparative term – the Tribunal was ‘simply saying that whilst the applicant had advanced certain matters in favour of the Tribunal being satisfied that there were compelling reasons to waive the Schedule 3 criteria, other matters going to that same issue ultimately led it not to be so satisfied’.[22]
Consideration
[22] Ibid [12].
Ground 1 – Ignored a relevant consideration
There is no error disclosed in the manner in which the Tribunal approached its task in assessing whether there were compelling reasons to waive the schedule 3 criteria.
It is reasonably apparent that the Tribunal did consider the position of the sponsor once the sponsor had a child and I accept the submission that the sponsor’s claim that she would need the applicant’s support ‘in a few months’ in the context of her being 20 weeks pregnant could reasonably be taken to mean that she would need the Applicant’s support following the delivery of their child.
Further, the findings of the Tribunal in relation to the capacity of the applicant to provide financial support applied equally pre-or post the delivery of the child.
Similarly, the findings in relation to the non-financial support were equally applicable as between the two periods.
The Tribunal has on the face of the decision given active, genuine and intellectual consideration to the claims made both by the applicant and the sponsor as to whether there were compelling reasons to exercise the discretion to waive the required criteria: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [19].
Ground 2 – weighing or evaluation exercise
At [23] of the applicant’s submissions he states that:
In the language expressed by the Tribunal at para 29 there is a misconception that the Tribunal’s task was to weigh factors in favour of waiver and contrary to waiver. That is not what the provision calls for. The provision calls for an evaluative task as to whether the Minister is satisfied that “there are compelling reasons for granting the visa”. Here there were obvious compelling reasons for granting the visa, Instead of doing its correct job of considering whether there were compelling reasons for granting a visa, the Tribunal weighted up factors in favour and against of waiver. That simply was not the correct task that faced the Tribunal.
This ground lacks substance.
There is no error exhibited in the decision of the Tribunal. The Tribunal considered the factors that were submitted to weigh in favour of the grant of waving the schedule 3 criteria. The Tribunal considered that those factors do not weigh strongly in favour of waiver. Put another way the Tribunal found that those factors did not compel the Tribunal to exercise its discretion to waive the schedule 3 criteria.
It is notable that in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [39] North AJC in considering the First Respondent’s power to revoke a decision to cancel a visa used the expressions “ weighed up “ and “evaluate” interchangeably. There is no error in the Tribunal following a similar approach in this matter.
The Tribunal also considered the applicant’s conduct in respect of his migration history. Whether the Tribunal used the expression “weighed”, “evaluated” or “considered” in relation to its treatment of the material before it does not detract from the clear impression that the Tribunal’s decision as to whether it should exercise its discretion in the applicant’s favour was open to it on the evidence.
Conclusion
For the reasons above, I have concluded that the application must be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 2 August 2019
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