Saha v Minister for Immigration
[2010] FMCA 715
•13 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAHA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 715 |
| MIGRATION – MRT decision – child residence visa – exclusion of adult child with de facto partner – applicant admitted de facto partner – misunderstood meaning of criteria – not denied meaningful hearing – no jurisdictional error found – discretion to refuse relief if remitter futile – application dismissed. |
| Migration Act 1958 (Cth), ss.5CB, 360 Migration Regulations 1994 (Cth), regs.1.03, 1.09A, Sch.2 cll.802.212, 802.212(1)(b), 802.212(2), 802.214, 802.214(1)(a)(ii), 802.214(2) |
| Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 Pradabsuk v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 584 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZECD v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 53 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SUBIR KUMAR SAHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1407 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 13 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Counsel for the First Respondent: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1407 of 2010
| SUBIR KUMAR SAHA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Saha arrived in Australia in June 2002 on a student visa. His student visa expired in July 2003 but he has remained in Australia, covered by a series of bridging visas for most of his subsequent period of residence. A case history is set out in the delegate’s decision, and does not need to be detailed. In short, during the period between 2003 and January 2010 he made further visa applications, engaged in litigation, and made at least one application for Ministerial intervention.
On 7 January 2010, he lodged an application for permanent residence in Australia as a child. He did not identify his parents as Australian citizens or permanent residents, but said that they were living in India. He gave his birth date in 1983, showing that he was aged 27 at time of visa application. In relation to the “child’s relationship status”, he ticked the box for “married or in a de facto relationship”, inserted the name of a person, and gave “date of marriage or date de facto relationship began” as a date in August 2008. The visa application also named a different person as the source of Mr Saha’s financial support, but the relationship of that person to him was not self‑evident. Other sources of support were referred to as “friends and family”.
A delegate addressed the visa application in a decision made on 14 January 2010, one week after the application was lodged. The delegate referred to some, but not all, of the significant criteria for the grant of a ‘child’ visa to an adult person.
The relevant criteria were cll.802.212 and 802.214 in Sch.2 of the Migration Regulations 1994 (Cth):
802.21Criteria to be satisfied at time of application
…
802.212
(1)The applicant:
(a)is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b)subject to subclause (2), has not turned 25.
(1A)If the applicant is a step‑child of the person mentioned in paragraph (1) (a), the applicant is a step‑child within the meaning of paragraph (b) of the definition of step‑child.
(2)Paragraph (1) (b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b) (ii) of the definition of dependent child.
…
802.214
(1)If the applicant has turned 18:
(a)the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b)the applicant is not engaged in full‑time work; and
(c)subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full‑time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2)Paragraph (1) (c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b) (ii) of the definition of dependent child.
The concept of being a “dependent child” is found in reg.1.03:
dependent child, of a person, means the child or step‑child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
The concept of having a “de facto partner” invoked a definition in s.5CB of the Migration Act 1958 (Cth):
5CBDe facto partner
De facto partners
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b)the relationship between them is genuine and continuing; and
(c)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d)they are not related by family (see subsection (4)).
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4)For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
Regulation 1.09A further explained the matters to be addressed when considering a ‘de facto’ relationship. They addressed the usual factual indicia of a marriage‑like relationship, in terms which are commonly found in legislation and reflect the ordinary understanding of a de facto marriage.
In his or her reasons for decision, the delegate referred to Mr Saha’s history in Australia and said:
It must be noted that Australia’s Child visa program is designed to provide a streamlined visa process for children. Therefore genuine applicants are granted visas with the least delay, provided applicants satisfy the primary criteria. However, Subclass 802 Child visas cannot be considered a pathway to those persons whose true intentions, at the time of applying for the visa, are:
-to remain in Australia illegally;
-to make refugee claims onshore;
-to apply for migration or long term temporary residence onshore;
-to use one or more visas to maintain ongoing residence in Australia;
-to work illegally in Australia;
ASSESSMENT
The applicant lodged the Residence‑Child (802) visa on 07/01/2010.
For migration purposes, a child is generally defined as a child or stepchild under the age of 18. However for the purposes of the Child visa category (Subclass 802), an applicant may also satisfy the criteria if they are less than 25 years of age, a full time student and are financially dependent on their sponsoring parent. Children, who are financially dependent on their parents due to an incapacity which prevents them from working, are considered a dependent child regardless of their age.
The Regulations further require that if the visa applicant has turned 18 at the time of application, the applicant must not be engaged to be married. The applicant must not have or ever have had a spouse and must not be engaged in full time work.
At time of lodgement the applicant is 27 years of age.
The Applicant has not provided evidence that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. Further the Applicant has made no claims that he is the dependent child of anyone. Accordingly, the Applicant does not meet Regulation 1.03 at time of application because he is not a dependent child of a person who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.
As I am not satisfied that the Applicant, is a dependent child at the time of application, accordingly Mr Subir Kumar SAHA does not meet Clause 802.214 and at the time of decision does not meet Clause 802.221.
I have not assessed the Applicant against the criteria, other than Clause 802.214 and 802.221, contained in Subclass 802.
Mr Saha appealed to the Tribunal. He attended a hearing held by the Tribunal on 10 May 2010. A transcript of the hearing is in evidence. The applicant indicated that his English “should be okay”, and that he did not need an interpreter.
At the commencement of the hearing, Mr Saha indicated to the Tribunal that he had understood that his visa application had been rejected on grounds of his age, being 27. He indicated that he was under a misunderstanding that the criteria related to his age on entry to Australia, rather than date of application.
He appears, although his evidence is unclear, to have confirmed that he did not have any dependency on parents who were Australian citizens or holders of a permanent visa.
The Tribunal then moved to the question of his marital status:
TRIBUNAL MEMBER: Okay. And you are either married or in a de facto relationship?
APPLICANT: Yes, de facto
TRIBUNAL MEMBER: De facto, from 15 August 2008?
APPLICANT: That’s right
TRIBUNAL MEMBER: With Ms P
APPLICANT: Yes Sir
TRIBUNAL MEMBER: So the law says, if the applicant has turned 18, which you have, the applicant does not have a spouse or de facto partner; you do have a de facto partner?
APPLICANT: I do, yes
TRIBUNAL MEMBER: So you’re excluded from a Child visa because you have a partner
APPLICANT: Well it’s not my married or anything
TRIBUNAL MEMBER: Doesn’t matter, de facto is a partner under the law. It says either a spouse, which is someone you’re married to, or a de facto partner
APPLICANT: If she wasn’t my de facto, what would have been the difference?
TRIBUNAL MEMBER: Well, no doubt there would be other grounds that you would not be successful in this visa. But I’m looking at the grounds that the Department used in their decision to you. So I’m just trying to show you, there are many things that you have to satisfy, so it’s difficult to know where to start
APPLICANT: Sure
TRIBUNAL MEMBER: But the best place to start is what the Department made their decision on and looking at that clause which is 802.214, these are the requirements. So for example … so what I’m saying is that if you’re over 18 and you’re married or you have been in a de facto relationship or were in one in the past, you can’t be considered a child. There’s another section which talks about not turning 25 at the time of application. So again you’re over 25 at the time of application. What you then have to show is that you’re a dependent child because you have disabilities. Do you have any disabilities?
APPLICANT: No
TRIBUNAL MEMBER: No, and that … it seems to me that you actually don’t have a sponsor in this regard either
APPLICANT: I can manage one if you say it’s required
TRIBUNAL MEMBER: Sorry you have to be, anyway. Did you apply for this visa with any thought that you would be successful?
APPLICANT: Well
TRIBUNAL MEMBER: Or are you using this as a way to go to the Minister, to ask for his intervention?
APPLICANT: Well not exactly, to be honest with you, my de facto Ms P, she is in the process of getting her PR in Australia.
TRIBUNAL MEMBER: Is she in Australia?
APPLICANT: She is in Australia, she is studying, she is a British citizen. Until she finishes her study, she can’t you know, she hasn’t got enough points to apply for PR in Australia. So once she gets her PR, obviously as a de facto I will be
TRIBUNAL MEMBER: Oh okay, you will apply as her spouse
APPLICANT: Yes, and in the meantime, I will try my best to all options that I can find legally, that obviously to try to get some sort of visa to remain in Australia lawfully
TRIBUNAL MEMBER: Until that other visa is sorted
APPLICANT: Yes, obviously we are in a serious relationship and I don’t want to be doing something, like I have a bad record previously.
The Tribunal then further discussed the applicant’s immigration situation with him, putting to him: “the fact that you have a spouse means that you don’t satisfy the visa criteria” (see transcript page 6, point 2), and continuing: “so really your only option now is to go to the Minister and I guess you’ll just have to set out fully the circumstances of your partner”.
The Tribunal later invited Mr Saha to raise any “further questions”, and the hearing concluded shortly after that.
The Tribunal made a decision on 1 June 2010, affirming the delegate’s decision to refuse the visa application. In its statement of reasons, it referred to the evidence given by Mr Saha at the hearing, and addressed the criteria found in cl.802.214. It said:
27.Based on the visa application and oral and documentary evidence provided by the applicant, the Tribunal finds that the applicant was over 18 at the time of application, so cl.802.214(1) applies here.
28.Based on the oral and written evidence of the applicant, the applicant is currently in a de‑facto spouse relationship and has been since 15 August 2008. Thus the applicant does not satisfy cl.802.214(1)(a)(ii) and hence does not satisfy sub‑clause (1) as a whole.
29.The Tribunal notes that the dependent child exclusion in cl.802.214(2) does not apply here, as this is only a consideration in relation to sub‑clause (1)(c) and the Tribunal did not need to proceed to consider that sub‑clause as (1)(a) was not satisfied and these are cumulative requirements.
30.Hence, the applicant does not satisfy cl.802.214 as a whole. In respect of the other visa subclass, there is no material which suggests that the visa applicant meets prescribed criteria for the visa sought, in terms of being an ‘orphan relative’ under r.1.14 and subclass 837.
(emphasis in original)
Mr Saha applied to the Court for judicial review of the Tribunal’s decision on 28 June 2010. At a first court date I fixed the matter for a show cause hearing, because I was not satisfied that the application had any merit.
Shortly before the show cause hearing, Mr Saha filed an amended application containing the following grounds:
1.The Migration Review Tribunal misinterpreted and incorrectly applied the law.
1(a)The Migration Review Tribunal failed to afford the applicant procedural fairness, failed to provide a hearing as required by law and failed to conduct a review as required.
Particulars:
The critical issue on the review was whether the applicant had a de facto partner at the time of application. The Tribunal did not make any enquiry of the applicant as to whether he knew what a de facto partner was in circumstances where the applicant believed that a serious relationship was a de facto relationship.
1(b)The Migration Review Tribunal made a jurisdictional error in that it erred in law as to the meaning of de facto partner in circumstances where the applicant did not understand what was meant by the term and erroneously believed that a serious relationship which was long term was a de facto relationship.
2.The Migration Review Tribunal failed to appreciate the facts.
3.The decision is wrong under the immigration law.
The amended application was supported by his affidavit, the relevant parts of which are:
3.The Tribunal found that I had a de facto partner (Ms P) at the time of my application.
4.I said to the Tribunal that I had a serious relationship with Ms P and I did not live together as man and wife.
5.I misunderstood the meaning of de facto partner it is not an expression that I had ever heard before I came to Australia and I thought it meant you have a long term relationship with somebody which was a serious relationship.
6.Ms P and I had then and still have a serious relationship but we have never lived together nor would either of us live with a person of the opposite sex before marriage.
7.I am a practising Hindu as is Ms P, we do not believe in living together in the way that I now understand is meant by “de facto partner” relationship.
8.I agree in my visa application, I made an error by saying that I had a de facto partner but this was based on my misunderstanding of the expression of de facto partner.
In view of the assertion in paragraph 4 of his affidavit that, in effect, the Tribunal had failed to address evidence given by Mr Saha at the hearing which was pertinent to the basis upon which the Tribunal decided the matter, I fixed the matter for further final hearing today. I directed the Minister to prepare a transcript of the short hearing, and I have extracted above the relevant part.
Mr Saha was represented today by counsel who addressed the grounds in the amended application. Counsel submitted that the Tribunal had made a jurisdictional error by failing to afford Mr Saha a ‘meaningful’ opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review” in accordance with obligations under s.360 of the Migration Act.
It was not submitted that the Tribunal had failed to afford rights of procedural fairness implicit in s.360, by failing to direct Mr Saha’s attention to the issue upon which it decided the case, that is, the issue of cl.802.214(1)(a)(ii). Plainly the Tribunal did direct his attention to that issue, and in my opinion sufficiently addressed obligations identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.
Counsel did, however, submit that the Tribunal’s hearing miscarried and was not ‘meaningful’, because, unknown to the Tribunal, Mr Saha admitted being in a de facto marital relationship under a misapprehension of the meaning of the term ‘de facto’. He did not cite any authority supporting such a contention, but invoked the recent Full Court decision of Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41. That case considered questions of medical unfitness to participate in hearings, where the unfitness was not appreciated by the Tribunal. SZNVW considered the well known case of Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, from which principles in relation to a ‘meaningful’ opportunity to participate in the manner described in s.360 derive.
However, I do not consider that SCAR principles, nor SZNVW, assist Mr Saha. It is clear from the judgments in SZNVW, that the SCAR principles apply only in relation to review applicants who have proved to the Court’s satisfaction that they lacked a “capacity for rational decision‑making in his own interests in so far as the presentation of his case was concerned” (see Keane CJ at [15], [20], [22] and [37], Emmett J at [48] and [49], and Perram J at [87]).
There is nothing in the evidence before me suggesting that the Tribunal’s review function in the present case miscarried by reason of a lack of capacity on the part of Mr Saha to understand the relevant visa criteria, nor any inability to participate in the hearing by providing his evidence and submissions relevant to the criteria.
In relation to the factual foundations of his argument, counsel submitted that the evidence in Mr Saha’s affidavit of his ‘misunderstanding’ of the meaning of ‘de facto partner’ pointed to such a breach of s.360.
However, I have difficulty relying upon the contents of this affidavit, and of paragraph 5 in particular. Paragraph 5 is based upon the preceding paragraph, in which Mr Saha asserts that the Tribunal was informed that he and Ms P did not “live together as man and wife”, and suggests that the Tribunal ignored this evidence suggesting that he misunderstood the “meaning of de facto partner”. It is now proved that he did not say this to the Tribunal, and this is conceded by his counsel.
Moreover, I can find nothing in the transcript which would suggest that at any time Mr Saha was under any misapprehension as to the concept of de facto partner as a partner married in fact but not in law, whether in ordinary English or as defined in the Migration Act.
Indeed, the transcript suggests to me that Mr Saha was fully alive to the legal ramifications of being in a de facto relationship for immigration purposes, since his evidence to the Tribunal suggested that the whole purpose of the present hopeless visa application, and the application for review to the Tribunal, was to protract a period of lawful residence on bridging visas until his de facto spouse had acquired a residence visa, upon which he could himself gain permanent residence as a ‘spouse’ based on his de facto relationship. In my opinion, the evidence given by Mr Saha tends to confirm that he probably held a correct understanding of the concept of de facto relationship, rather than the converse.
However, ultimately I do not need to reach a conclusion whether I accept that Mr Saha had the belief contended by his counsel. Even if he did, I do not consider that it would be enough to establish any jurisdictional error affecting the Tribunal’s decision. In my opinion, the conclusion arrived at by the Tribunal was clearly open to it on the evidence before it, on the issue which was clearly raised with Mr Saha at the hearing. It may be that no other conclusion was open as a matter of law. Mr Saha was not denied any opportunity to present to the Tribunal any evidence relevant to the issue of whether Ms P was his de facto spouse.
For that reason, I do not accept the arguments in support of the grounds of review presented by Mr Saha’s counsel.
Mr Saha’s counsel did not develop the contention in Ground 1 of the amended application, suggesting that the Tribunal had obligations to make inquiries of Mr Saha in relation to the circumstances of his relationship. In my opinion, on current authority the Tribunal had no such obligation, in a situation where a visa applicant appeared to have full capacity to present his own case, and a full understanding of the criterion which was discussed with him by the Tribunal. It has been held by the High Court that the Migration Act does not impose on a migration tribunal “a general duty to undertake its own inquiries in addition to information provided to it by the applicant” (see Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1]). The circumstances of the present issue did not give rise to any “failure to make an obvious inquiry about a critical fact”, which the Tribunal should have been alive to and should have made under principles appearing to be endorsed in SZIAI in [25].
I therefore can identify no duty on the Tribunal to query Mr Saha’s apparent understanding of the immigration regulations’ concept of ‘de facto partner’, nor any duty for it further to investigate his assertion of such a relationship with Ms P in his visa application and at the hearing.
Otherwise, in my opinion the amended application and the affidavit in support, invite the Court itself to investigate the state of facts in relation to the claimed relationship between Mr Saha and Ms P in a manner which the Tribunal was not invited to. However, it is not the function of the Court to do this in the course of judicial review.
I am therefore not satisfied that any jurisdictional error has been shown to vitiate the decision of the Tribunal.
The Minister submitted that, even if jurisdictional error vitiated the Tribunal’s conclusion in relation to cl.802.214(1)(a)(ii), the Court has a discretion to refuse to grant relief by way of quashing the Tribunal’s decision and remitting the matter for further hearing, in circumstances where a remitter would be futile.
The Minister’s solicitor cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58], where reference is made to a situation where “the decision‑maker was bound by the governing statute to refuse” the substantive application. There is also authority in the Federal Court that relief may be appropriately refused where on uncontested evidence the Tribunal is bound to arrive at the same decision (compare SZECD v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 53 at 62, and also Pradabsuk v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 584 at [51] and [54]). The principle is supported in Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 at [48], where it is said: “it must be quite clear that a rehearing or reconsideration is or will be futile”.
In the present case, the Minister argued that it would be futile to remit the matter again to the Tribunal for further consideration, because on his own evidence to the Tribunal, Mr Saha was undoubtedly a person who had turned 25 and did not come within the exemption in relation to disabled adult children over the age of 25 covered by cl.802.212(2). The outcome of a remitter was therefore, it was submitted, inevitable.
Counsel for Mr Saha had not been informed by his client of the Minister’s submission, which had been brought to his attention in writing and orally on the last occasion. Nor that I had specifically drawn Mr Saha’s attention to the possibility that I might dismiss his application because remitter would be futile. Counsel was therefore in an unfortunate position where he was required to meet this argument on his feet.
However, he bravely endeavoured to persuade me that cl.802.212(1)(b) would not have the irrefutable effect argued by the Minister. He sought to make a construction point arising from 802.214(2). I am not clear as to the construction which I was invited to take, but I can find no implication from that subclause overcoming the age 25 bar on visa applicants for this class of visa in the conceded circumstances of Mr Saha.
I therefore am persuaded by the Minister’s submission, and in the event that I were incorrect in thinking that the Tribunal’s decision was vitiated by jurisdictional error in relation to the reasoning it provided, I would have refused relief.
For the above reasons, I must dismiss the application.
I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 8 October 2010
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