Samrao v Minister for Immigration

[2017] FCCA 2277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMRAO v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2277

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – the Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359AA

Migration Regulations 1994, reg.1.15A, cl.820.211, 820.221 of Schedule 2

Applicant: ASHAN SINGH SAMRAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 914 of 2017

Judgment of: Judge Street

Hearing date: 18 September 2017

Date of Last Submission: 18 September 2017

Delivered at: Sydney

Delivered on: 18 September 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 914 of 2017

ASHAN SINGH  SAMRAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 March 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant was found to be a citizen of India. On 23 September 2007 the applicant first arrived in Australia and on 6 November 2007 the applicant applied for permission to work on a Student (subclass 572) visa which was granted until 11 November 2009. The applicant was granted a Bridging visa until 7 May 2012 and was granted on 7 May 2012 a Student visa valid until 7 June 2012.

3. On 26 July 2012 the applicant was granted a subsequent student visa which was cancelled on 3 December 2012. On 12 March 2013 the applicant applied for review of the revocation of the applicant’s student visa to a differently constituted Tribunal and on 16 December 2013, a differently constituted Tribunal affirmed the Department’s decision to cancel the applicant’s student visa.

4. On 18 December 2013 the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801 visa).

5. On 8 February 2016, the delegate refused to grant the applicant a Partner visa as the delegate was not satisfied the parties were in a genuine and continuing relationship at the time of application. The delegate found that the applicant failed to satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Migrations Regulations 1994 (“the Regulations”) because the applicant did not apply for the visa within 28 days of the last substantive visa and found that there were no compelling reasons to waive clause 3001 of Schedule 3 to the Regulations.

The Tribunal’s decision

1. The applicant lodged an application for review on 25 June 2016. The applicant provided material to the Tribunal and had two hearings before the Tribunal to give evidence and present arguments on 12 January 2017 and 15 February 2017. On the second occasion, the applicant’s sponsor and her father attended.

2. The Tribunal made adverse credibility findings in relation to the applicant, his sponsor and her father. The Tribunal provided reasons identifying inconsistencies in support of the adverse credibility findings. The Tribunal put certain inconsistencies to the applicant, in accordance with s.359AA of the Migration Act, during the hearing before the Tribunal.

3. The Tribunal correctly identified the relevant law in relation to cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations. The Tribunal also identified the requirements for the applicant to meet the definition of spouse in s.5F of the Migration Act and reg.1.15A(3) of the Regulations. The Tribunal accepted that the parties were married on 27 November 2013.

Consideration of the aspects of the parties’ relationship

1. Having given consideration to the financial aspects of the relationship, the Tribunal was not prepared to accept on the evidence before it that the parties are pooling their financial resources or sharing day-to-day household expenses as claimed. The Tribunal found the financial aspects of the relationship were not consistent with the applicant and the sponsor being in a genuine and continuing spousal relationship.

2. The Tribunal turned to the nature of the household, the Tribunal was not prepared to accept that the parties have lived together, at Parramatta or any other address since their marriage. The Tribunal had found the evidence presented as to the nature of their household is not consistent with the applicant and the sponsor being in a genuine and continuing relationship.

3. In relation to the social aspects of the relationship, the Tribunal was not satisfied, on the face of the evidence before it, that the applicant and the sponsor represented themselves to others as being married to each other or planned to undertake joint social activities. The Tribunal found the social aspect of the relationship was not consistent with the parties being in a genuine and continuing relationship.

4. In respect to the nature of the person’s commitment to each other, the Tribunal did not accept that the applicant and the sponsor had provided one another with emotional support or that they see their relationship as long term.

5. The Tribunal was not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal was not satisfied the parties live together or do not live separately and apart on a permanent basis. 

6. The Tribunal found the applicant did not satisfy the definition of spouse at s.5F of the Migration Act, and found that the applicant failed to meet the criteria under cl.820.221(1)(a) of Schedule 2 to the Regulations.

7. The Tribunal found that there was no evidence that the applicant met any of the alternative subclauses of cl.820.221 of Schedule 2 to the Regulations and consequently, found the applicant failed to meet the criteria of cl.820.221 of the Regulations. It was in those circumstances the Tribunal affirmed the decision under review. 

Before this Court

1. The grounds in the application are as follows:

   1. Judicial error has been made in making the decision

   2. Not enough explanation by interpreter

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing.  The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

4. The Court explained it would have identified the evidence, then hear from submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that his case was genuine, that he could not properly present the material and that he got nervous.  Nothing said by the applicant from the bar table identified any jurisdictional error. The applicant’s submissions in substance, invite this Court to engage in an impermissible merits review.  This Court does not have power to revisit the merits.

Consideration

Ground 1

1. Ground 1 is a bare allegation of error that does not identify any basis for the alleged ground. The unparticularised allegation is not capable of making out any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Accordingly, Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, no particulars have been provided in support of any criticism of the interpreter. On its face, the unparticularised allegation is incapable of making out any relevant legal error. There is no material before the Court to suggest that there is any material error by the interpreter in the course of the hearing, in respect of the two day hearing before the Tribunal.

2. This is a case where the Tribunal made adverse credibility findings in respect of the applicant, his alleged spouse and her father. Those credibility findings cannot be said to lack an evident and intelligible justification and were open on the material before the Tribunal. No jurisdictional error is made out by ground 2. Accordingly, the application is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 October 2017