Saini v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 278
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saini v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 278
File number(s): SYG 1424 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 27 February 2025 Catchwords: MIGRATION– judicial review – Partner visa refusal – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss359, 359C, 360, 363A
Migration Regulations 1994 (Cth) Sch 2 Pt 820 cl 820.221
Cases cited: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64
Northern Territory v Sangare (2019) 265 CLR 164
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Waensila v Minister for Immigration & Border Protection (2016) 241 FCR 121
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 25 February 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Ms J Schultz, Mills Oakley ORDERS
SYG 1424 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAHUL SAINI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
2.The application filed on 11 June 2020 be dismissed.
3.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $6,100.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
Before the Court is an application filed on 11 June 2020, under s 476 of the Migration Act 1958 (Cth) (Act), seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 May 2020. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 820 Partner (Temporary) (Class UK) visa (Subclass 820 visa) and a Subclass 801 Partner (Residence)(Class BS) visa (Subclass 801 visa).
BACKGROUND
The background of the matter was outlined within the Minister’s submissions, which I largely adopt.
On 15 August 2016, the applicant applied for the Subclass 820 visa and the Subclass 801 visa, being sponsored by his then wife who was an Australian citizen.[1]
[1] Court Book (CB) 1 to 20.
On 25 April 2017, the sponsor informed the Department that her relationship with the applicant had broken down, that she ‘will not be completing his visa application’, that she was no longer living with the applicant, and that they planned to finalise their divorce by January 2018.[2]
[2] CB 24.
On 30 September 2017, the sponsor informed the Department that she and the applicant separated on 3 January 2017 and were ending their marriage.[3]
[3] CB 32.
On 1 August 2019, the Department wrote to the applicant and informed him they had received information that the relationship between him and the sponsor had ended. [4] The applicant was invited to comment on the alleged relationship breakdown, or alternatively provide additional information to support further consideration of whether the applicant was eligible for the grant of the Subclass 820 visa and Subclass 801 visa despite a relationship breakdown. The applicant was alerted to the following three circumstances in which he might remain eligible for visa grant despite the relationship breakdown:
(a)where his sponsor has died;
(b)where he has suffered family violence committed by his sponsor; or
(c)where he and his sponsor share custody, access or maintenance obligations in respect of a child.
These circumstances were prescribed within cl 820.221 in Part 820 and cl 801.221 in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
[4]
On 7 August 2019, the applicant appointed a migration agent to assist in his application. On 28 August 2019 the agent requested additional time to respond to the letter of 1 August 2019, however the request was not granted.[5]
[5] CB 94.
On 11 September 2019, the delegate refused to grant:
(a)a Subclass 820 visa to the applicant because he did not meet cl 820.221; and
(b)a Subclass 801 visa to the applicant because he did not meet cl 801.221.[6]
[6] CB 105 to 107.
Application for review
On 23 September 2019, the applicant applied to the Tribunal for a review of the delegate’s decision in relation to the Subclass 820 visa.[7] The applicant attached a copy of the delegate’s decision and notification letter to his online review application form.
[7] CB 108 to 110.
On 23 April 2020, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, and invited him to provide information as to whether he could satisfy the criteria for the grant of a Subclass 820 visa. The letter stated that it was a requirement for grant of the visa that, at the time of application and the time of decision, he must be the spouse of his sponsoring partner unless one of three exceptions applies. These exceptions were described as ‘[t]he death of the sponsoring partner, [f]amily violence; [c]ertain court orders or responsibilities in relation to children’. The applicant was invited to respond by 7 May 2020, or make a request before that date for further time to provide a response.[8] The applicant did not respond to this letter.[9]
[8] CB 119 to 121.
[9] CB 126 at [6].
The Tribunal waited a further 21 days after 7 May 2020 before making its decision. During that three week period, no further information was provided to the Tribunal.[10]
[10] CB 126 at [9].
On 28 May 2020, the Tribunal affirmed the decision not to grant the applicant a Subclass 820 visa.[11]
[11] CB 125.
Tribunal decision
The Tribunal observed that the applicant had been invited to provide information pursuant to s 359(2) of the Act and had not provided the requested information within the prescribed timeframe. On that basis, it found that s 359C of the Act applied whereby the applicant was not entitled to appear before the Tribunal given the cascading effect of ss 360(3) and 363A of the Act.[12] In such circumstances, the Tribunal decided to proceed to make a decision on the review, without taking further action.
[12] CB 126 at [6] to [8].
The Tribunal found the evidence, as outlined in the delegate’s decision, was that the applicant had notified the Department that the relationship had ceased and there was no further evidence contradicting this information, nor was there any evidence that the applicant continued to be sponsored by his sponsoring partner.
As the applicant was no longer sponsored, the Tribunal concluded he no longer met cl 820.211(2)(c), as required by cl 820.221(1)(a) of the Regulations.[13]
[13] CB 127 at [12].
The Tribunal found there was no evidence or suggestion before it that the applicant met any of the alternative criteria in cl 820.221(3) and therefore concluded that the applicant could not satisfy the criteria in cl 820.221 of the Regulations.[14]
[14] CB 127 at [13] to [14].
Accordingly, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of an originating application filed on 11 June 2020, within which he raised the following grounds of review (reproduced without alteration):
1.A jurisdictional omission and error led the decision before considering properly facts presented to Tribunal; thus an error made by the AAT-MRT ;
2.Any information before the application is determined; ref: Berengvel (Obiter), Waensila (obiter) Section 55 has no limitation of time; thus an error made by the AAT-MRT;
3.Tribunal errored by not properly considering the procedural fundamentals of Migration Act and s.55 S.55 Any information before the application is determined; ref: Berengvel (Obiter), Waensila (obiter) Section 55 has no limitation of time; thus an error made by the AAT-MRT;
4.The AAT-MRT made jurisdictional error in denying the application for subclass 820 in failing to consider all the facts and the law related to visa claims. AAT-MRT did not accept my claims in fair manner
RELEVANT LEGISLATION
Section 359 of the Act relevantly provided:
359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
…
Section 359C(1) of the Act relevantly provided:
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
Section 360 of the Act provided:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 363A of the Act provided:
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Clause 820.211 of the Regulations relevantly provided:
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
…
Clause 820.221 of the Regulations relevantly provided:
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
…
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
CONSIDERATION
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. This matter was explained to the applicant at hearing where he was afforded an opportunity to particularise his grounds and raise any further matters which indicated that the Tribunal had erred in making its decision.
Asked at hearing whether there was anything he wished to say in support of his grounds of review, the applicant stated that he had nothing to add. In an effort to further understand the applicant’s grounds of review as he understood them, I pressed the applicant further and he told me that a migration agent or lawyer had drafted the grounds in his application. After further pressing in relation to this matter, the applicant confirmed that he had read the Minister’s submissions and had received the Court Book approximately a year before the hearing. On that basis, I read out each of the grounds to the applicant and invited oral submissions. The applicant was unable to further particularise his grounds. I also asked the applicant to let me know if he otherwise thought the Tribunal had erred in making its decision. Again, the applicant was unable to draw my attention to the possibility of any error on the Tribunal’s part. Nevertheless, I will proceed to address each of the grounds raised by the applicant.
For the purposes of my consideration, I adopt the Minister’s categorisation of the applicant’s four grounds in the following manner:
(a)Grounds 1 and 4 generally contend that the Tribunal failed to consider evidence;
(b)Grounds 2 and 3 amount to a complaint whereby the Tribunal failed to properly consider or follow ‘procedural fundamentals’ of the Act.
Grounds 1 and 4
By ground 1, the applicant alleges that a ‘jurisdictional omission and error led the decision before considering properly facts presented to the Tribunal’. Ground 4 states that the ‘Tribunal failed to consider all the law and facts’ and didn’t accept his claims. To the extent that the applicant contends that the Tribunal did not take into account his evidence or his claims, the Minister submits that this fails on the facts in circumstances where the applicant did not provide any evidence or claims to the Tribunal.
The Minister contends the only evidence put before the Tribunal by the applicant was the delegate’s decision record. It follows that the applicant did not provide the Tribunal, or the Department, any information which would contradict the finding that the applicant could not satisfy cl 820.221. Accordingly, the Tribunal could not have failed to take evidence into account which was not before it.
I agree with the Minister’s submission. Accordingly, these grounds must fail.
Grounds 2 and 3
In relation to grounds 2 and 3, the applicant contends that the Tribunal did not properly consider the ‘procedural fundamentals’ of the Act.
The Minister submits, and I agree, that the Tribunal operates in accordance with the provisions set out in Part 5 of the Act, and therefore is not bound by s 55 of the Act as referred to in the applicant’s grounds for review. By contrast, the Tribunal is bound by the cascading provisions of ss 359(2), 359C, 360(3), and 363A. In circumstances where the applicant was invited to provide information under s 359(2) and failed to respond within the prescribed time, the Tribunal is correct in its determination that the applicant had lost his right to a hearing pursuant to ss 360(3) and 363A.
With respect to the matters of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 at [26] (Berenguel), and Waensila v Minister for Immigration & Border Protection (2016) 241 FCR 121 (Waensila), the Minister submits that the applicant’s reliance on these cases is misconceived. I agree with those submissions. In Berenguel, the Court held that the Minister could have regard to up-to-date information for the purpose of cl 885.213 under a different Part of the Regulations. The reasoning of the High Court has no application to the present case. The applicant’s reliance on Waensila is also misconceived as that case has no bearing upon the Tribunal’s task or is otherwise relevant to the applicant’s grounds. Waensila concerned cl 820.211(2)(d), a provision that enlivens a requirement in circumstances where an applicant does not hold a substantive visa at the time of application. It is not in contention in this case that the applicant held a substantive visa at the time of application, and therefore Waensila has no bearing upon the required assessment in this case.
Accordingly, I accept the Minister’s submissions in relation to grounds 2 and 3 and find that they do not disclose jurisdictional error on the part of the Tribunal. Subsequently, these grounds must also fail.
A further matter
Paragraph 10 of the Tribunal’s decision reads:
The evidence in the delegate’s decision record is that on 1 August 2019, the applicant notified the Department that her relationship sponsor had ceased and that the applicant sponsor would be applying for divorce. The applicant has not provided any evidence alternative claim or evidence that she continues to be sponsored for the visa.
The Tribunal has erred in its description of the status of the person who notified the Department on 1 August 2019 of the relationship breakdown. It also erred in its description of the applicant’s gender in paragraphs 6, 10 and 11 of its decision. It was the sponsor, not the applicant, who made that notification. The applicant in this case is male, not female. A question then arises whether these errors are indicative of some failure on the Tribunal’s part to discharge its statutory task.
The Minister submits that the gender misdescription of the applicant in paragraph 10 of the Tribunal decision is a mere typographical error. I find that difficult to accept in circumstances where there is another error within the same paragraph of the Tribunal’s decision and a similar error in paragraphs 6 and 11 of the decision.
Nevertheless, in my view, these errors are minor and of no moment when understood within the context of the Tribunal’s reasons. A fair reading of the Tribunal’s decision as a whole indicates that the Tribunal clearly understood the applicable law in this case, the nature of the relationship between the parties and whether the applicant would otherwise be entitled to the grant of the Subclass 820 visa in circumstances where the relationship had broken down. The errors, while unfortunate, do not disclose any misunderstanding on the Tribunal’s part of its statutory task or the relevant aspects of the evidence upon which its decision was based.
Accordingly, jurisdictional error does not arise in relation to this additional matter.
CONCLUSION
For the above reasons, the application is dismissed.
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant to be fixed in the sum of $6,100. I find that costs should follow the event and that this amount to be reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions and appearance at the hearing.
Whilst I acknowledge the applicant’s submission that he may have difficulty paying such an amount, the applicant’s financial standing is not a sound basis upon which to rest an argument that the Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare (2019) 265 CLR 164 at [176]-[177]; [2019] HCA 25 at [35] (Sangare) per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ, as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $6,100.
Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024(Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 27 February 2025
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