Sapkota v Minister for Immigration
[2018] FCCA 3043
•22 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAPKOTA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3043 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary partner visa – Tribunal proceeding in the absence of the applicant – whether the Tribunal erred by not adjourning the hearing or making enquiries as to the applicant’s circumstances, or whether there is an apprehension of bias considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 362B, 375A, 379A, 379C Migration Regulations 1994 (Cth) |
| Cases cited: CER15 v Minister for Immigration [2016] FCA 1057 Choi v Minister for Immigration [2018] FCA 291 Kaur v Minister for Immigration (2014) 236 FCR 393; [2014] FCA 915 Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Minister for Immigration v SZFML (2006) 154 FCR 572 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZVFW [2018] HCA 30 MZAEU v Minister for Immigration [2016] FCAFC 100 Nazir v Minister for Immigration & Anor [2018] FCCA 861 SZOPV v Minister for Immigration [2016] FCA 514 Waensila v Minister for Immigration (2016) 241 FCR 121; [2016] FCAFC 32 Xie v Minister for Immigration [2005] FCAFC 172 |
| Applicant: | PURNA RAJ SAPKOTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3208 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman of Newman & Associates |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 18 November 2016 (as augmented in the applicant’s written submissions filed on 23 October 2018) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3208 of 2016
| PURNA RAJ SAPKOTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Sapkota, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 25 October 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Sapkota a temporary partner visa.
The following statement of background facts is derived from the submissions of the Minister filed on 18 October 2018.
On 20 January 2014, Mr Sapkota applied for a partner visa.[1] The basis of the application was Mr Sapkota’s relationship with his sponsor, who is his wife.
[1] Court Book (CB) 6
On 1 May 2015, the delegate refused to grant a partner visa on the basis that Mr Sapkota did not satisfy clause 820.221(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[2] On 8 May 2015, Mr Sapkota applied to the Tribunal for review of the delegate's decision.[3] On 19 November 2015, the Tribunal dismissed Mr Sapkota’s application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act), as he did not appear at a hearing scheduled on that date.[4] As Mr Sapkota did not seek reinstatement of the application, on 4 December 2015 the Tribunal issued a decision under s.362B(1E) of the Migration Act affirming the original dismissal decision.[5]
[2] CB 127
[3] CB 156
[4] CB 216
[5] CB 224
On 7 March 2016, Mr Sapkota applied to this Court for an extension of time in which to seek judicial review of the Tribunal decision. On 6 June 2016, a judge of the Court made orders by consent which remitted the application to the Tribunal for reconsideration.[6] This was because the Tribunal's decision which confirmed the decision to dismiss the application for non-appearance was erroneous, as the Tribunal did not provide Mr Sapkota with a copy of the initial dismissal decision at the time that the decision was made.
[6] CB 226
Following the remittal, on 14 September 2016 the Tribunal sent an invitation to Mr Sapkota, via his migration agent, to invite him to attend a hearing on 7 October 2016.[7] On 6 October 2016, Mr Sapkota contacted the Tribunal and stated that his wife was in custody[8] and he was depressed and thus that he would not attend the hearing.[9] On 7 October 2016, the Tribunal wrote to Mr Sapkota via his representative to advise him that it had agreed to postpone the hearing until 24 October 2016, and invited him to attend that hearing.[10] The Tribunal recounted that it sent SMS hearing reminders to Mr Sapkota’s mobile phone on 17 and 21 October 2016.[11] Mr Sapkota did not appear before the Tribunal at the scheduled hearing on 24 October 2016.[12]
[7] CB 246
[8] where she had apparently been since 2015
[9] CB 255
[10] CB 260
[11] CB 288: [9]
[12] CB 280
On 25 October 2016, the Tribunal proceeded under s.362B(1A)(a) of the Migration Act to make a decision on the review without taking any further action to enable Mr Sapkota to appear before it. The Tribunal affirmed the delegate's decision.[13]
[13] CB 286
Tribunal decision
The Tribunal identified the effect of regulation 820.211(2)(d) as being that if Mr Sapkota did not hold a substantive visa at the time of application, he needed to satisfy clauses 3001, 3003 and 3004 in Schedule 3 to the Regulations unless the Minister was satisfied that there were “compelling reasons” for not applying those criteria.[14] The Tribunal noted it was “not in dispute” that Mr Sapkota did not hold a substantive visa at the time of application as his last substantive visa was cancelled on 15 March 2010.[15] It found that, as the visa application was not made within 28 days of the relevant day as defined in clause 3001(2), Mr Sapkota did not satisfy criterion 3001.[16]
[14] CB 228: [12]–[13]
[15] CB 288: [14], [16]
[16] CB 288: [17]
The Tribunal then proceeded to consider whether there were compelling reasons for not applying the criteria. In doing so, the Tribunal expressly noted that circumstances which constitute “compelling reasons” can “arise at any time, including after the visa application is made”.[17] The Tribunal found that it had insufficient evidence to make any “critical assessment” of whether Mr Sapkota and the sponsor were and continued to be in a genuine, continuing and exclusive relationship at the time of the application or decision.[18] However, the Tribunal accepted “at face value” the claims that they were and continued to be in a genuine relationship.[19] The Tribunal considered, however, that simply being in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria, as this is already a requirement which must be satisfied in order to meet the criterion in regulation 820.211(2)(a) of Schedule 2 to the Regulations.[20] Rather, the Tribunal considered that if the relationship itself is to be considered a compelling reason for not applying the Schedule 3 criteria, then it must be the particular aspects of the relationship which must provide a compelling reason and not simply that the parties are in a relationship.[21]
[17] CB 288–289: [19]; Waensila v Minister for Immigration (2016) 241 FCR 121; [2016] FCAFC 32
[18] CB 289: [20]
[19] CB 289: [20]
[20] CB 289: [21]
[21] CB 289: [21]; Choi v Minister for Immigration [2018] FCA 291 at [34]; Nazir v Minister for Immigration & Anor [2018] FCCA 861 at [30]
The Tribunal noted that Mr Sapkota did not appear at the scheduled hearing, and that no submissions were made regarding compelling reasons for not applying the Schedule 3 criteria.[22] While the Tribunal noted that the delegate's decision stated that the Minister’s Department had been advised that the sponsor was in custody at that time and that Mr Sapkota was caring for the sponsor's four year old son, the Tribunal noted that the Minister’s Department did not receive any evidence to support Mr Sapkota’s claims of a relationship with the sponsor's son or any caring arrangements concerning him.[23]
[22] CB 289: [22]
[23] CB 289: [23]
The Tribunal concluded that, having considered all the circumstances of Mr Sapkota and the sponsor both individually and cumulatively up to the time of the decision, it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.[24] The Tribunal therefore found that the applicant did not meet regulation 820.211(2)(d)(ii) of Schedule 2 to the Regulations, and therefore affirmed the delegate's decision.[25]
[24] CB 289: [24]
[25] CB 286
The present proceedings
These proceedings began with a show cause application filed on 18 November 2016. There is one ground of review in that application:
The Tribunal erred by not allowing the applicant another suitable time for the hearing, despite knowing that the applicant's partner is in custody and that the applicant is suffering from severe depression whilst taking care of the sponsor's 4 year old son.
Particulars
Paragraphs [22] – [23] of the subject the decision.
As the Minister notes in his submissions, this ground could be understood as a contention that the Tribunal erred by acting unreasonably in failing to adjourn the scheduled hearing date to accommodate Mr Sapkota’s attendance at the hearing. The Minister submits that the Tribunal complied with the relevant statutory requirements and exercised its discretion under s.362B(1A)(a) of the Migration Act reasonably.
It appears that an amended application was served on the Minister on 28 February 2017 but was never filed. I have not seen it and, having regard to the fact that the applicant has been legally represented in these proceedings, I assume that it is not relied upon.
The ground in the application was augmented very recently in written submissions filed on behalf of the applicant on 23 October 2018. Two points are made in written submissions. The first is that the Tribunal erred by failing to enquire about the circumstances of Mr Sapkota (and his partner) noting that his partner was in prison and Mr Sapkota was responsible for the care of her son. The second is the proposition that because the Tribunal was constituted by the same member who constituted the Tribunal whose decision was set aside by consent, there is an apprehension of bias.
A further issue was raised by the Minister in relation to a non disclosure certificate purportedly issued by the Minister’s Department under s.375A of the Migration Act. The solicitor for Mr Sapkota conceded that there was no issue between the parties in relation to that certificate and, accordingly, I have not considered that issue.
The only evidence I have before me is the court book filed on 16 January 2017. An affidavit in relation to the non disclosure certificate was not read.
Consideration
In my opinion, there was no error by the Tribunal in the circumstances claimed. First, the Tribunal is not under a general duty to enquire, although a duty may arise in particular circumstances.[26]
[26] Minister for Immigration v SZIAI (2009) 259 ALR 429
The circumstance in the present case said to give rise to the duty to enquire was the incarceration of Mr Sapkota’s partner and his responsibility for the care of her son. Mr Sapkota contends that the Tribunal should have made enquiries with a view to his partner giving evidence to corroborate his claim of a compelling circumstance. No such duty arose on the facts of this case. The relevant circumstances are recited by the Tribunal at [23] of its reasons:
The Department noted in its decision dated 1 May 2015 that they had been advised by the applicant’s migration agent that the sponsor was in custody at that time and that the applicant was caring for her 4 year old son. The Department did not receive any evidence to support the applicant’s claims of a relationship with the sponsor’s son or any caring arrangements concerning him. The applicant did not provide any further submissions to the Department indicating there were any compelling reasons applicable to his case. The Tribunal also did not receive any submissions or arguments in relation to compelling reasons for waiving the Schedule 3 criteria.
In short, the Tribunal was aware of the asserted circumstance but stated that the problem was a lack of a claim or supporting evidence. Mr Sapkota had had since 2015 to present claims and evidence. There is a record of a specific invitation being made to Mr Sapkota’s then representative orally on 6 October 2016.[27] The representative could, if Mr Sapkota had wished, sought to make arrangements for Mr Sapkota’s partner to give evidence by telephone from prison. That opportunity was not taken up. While Mr Sapkota chose to dispense with the services of his representative shortly afterward, the essential point remains.
[27] CB 257
Neither am I persuaded that any apprehension of bias arises from the constitution of the Tribunal by the same member who initially dealt with the case.
There is no evidence to support the allegation of bias, which is serious and must be distinctly made and clearly proven.[28] This is particularly so in circumstances where:
a)in the first instance, the Tribunal dismissed the application without any further consideration of the application or information before the Tribunal;[29] and
b)in the second instance, on remittal, the Tribunal made a decision on the review without taking any further action to enable the applicant to appear before it.[30]
[28] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]
[29] section 362B(1A)(b) and s.362B(1E) of the Migration Act
[30] section 362B(1A)(a) of the Migration Act
Further, the fact that the same Tribunal member made the decision on remittal is not, of itself, sufficient to establish bias.[31]
[31] MZAEU v Minister for Immigration [2016] FCAFC 100 at [39]–[48]
In other respects, I agree with the Minister’s submissions concerning the ground of review advanced.
Invitation to attend the hearing
As the Tribunal's powers in s.362B of the Migration Act are only triggered if the applicant has been validly invited to appear before the Tribunal,[32] it is necessary to consider whether the Tribunal complied with its statutory obligations in respect of that invitation.
[32] see s.362B(1)(a)
As was noted above, by letter dated 14 September 2016 and sent to Mr Sapkota via email to his then migration agent, the Tribunal initially invited Mr Sapkota to attend a hearing scheduled on 7 October 2016.[33] As required by s.360A(1) of the Migration Act, that hearing invitation contained the day, time and place of the hearing. It was also sent by a method specified in s.379A of the Migration Act, gave Mr Sapkota more than the 14 days notice prescribed by clause 4.21(4) of the Regulations, and included a statement of the effect of s.362B of the Migration Act.
[33] CB 246
On 6 October 2016, Mr Sapkota emailed the Tribunal stating he would not attend the hearing because his wife is in custody and he was depressed.[34] On 7 October 2016, the Tribunal sent a hearing invitation for a rescheduled hearing on 24 October 2016.[35] That invitation was again sent to Mr Sapkota via email to his migration agent, and again contained the day, time and place of the hearing, as required by s.360A(1) of the Migration Act. Mr Sapkota subsequently withdrew the migration agent as his representative in the proceedings, though after the notification of the rescheduled hearing date.[36]
[34] CB 255
[35] CB 260
[36] CB 266–279
The invitation was sent by a method specified in s.379A of the Migration Act, as required under s.360A(2)(a). As the hearing was rescheduled, it was necessary only that the notice of the rescheduling was reasonable, and did not require that the minimum prescribed period be observed again.[37] In any event, the period of notice for the rescheduled hearing exceeded the prescribed period.[38] The invitation also contained a statement of the effect of s.362B of the Migration Act.[39]
[37] see Minister for Immigration v SZFML (2006) 154 FCR 572 per Spender, French and Cowdroy JJ at [82]
[38] see s.360A(4) of the Migration Act and subregulation 4.21(4) of the Regulations
[39] see s.360A(5)
Under s.379C(5), as the hearing invitation letter was given by the method in s.379A(5), Mr Sapkota is taken to have received the document at the end of the day on which the document was transmitted irrespective of whether or not he actually received it.[40]
[40] Xie v Minister for Immigration [2005] FCAFC 172 at [14]
In these circumstances, I accept that the Tribunal correctly invited Mr Sapkota to a hearing before it for the purposes of s.360 of the Migration Act.
Reasonableness of decision to exercise s.362B(1A)(a) discretion
The question then turns to whether the Tribunal exercised its discretion in s.362B(1A)(a) reasonably. The question of whether the Tribunal has acted reasonably is “invariably fact dependent” and therefore consideration needs to be given to the relevant facts of the matter and the evidence before the Court.[41]
[41] Minister for Immigration v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]
The facts of this particular matter demonstrate that the Tribunal exercised its discretion under s.362B(1A)(a) of the Migration Act reasonably. In particular, Mr Sapkota had a track record of failing to engage with the Tribunal. He did not appear at the scheduled Tribunal hearing in 2015, and did not seek to have the application reinstated following its dismissal. After the remittal of the matter for reconsideration by this Court, Mr Sapkota informed the Tribunal that he would not be attending the first scheduled hearing, but did not make any further request for an adjournment following the rescheduling of the hearing. This demonstrates Mr Sapkota was not “actively seeking” to engage in the review with the Tribunal.[42]
[42] cf. Kaur v Minister for Immigration (2014) 236 FCR 393; [2014] FCA 915 at [96]
Further, the Tribunal decision refers to having sent Mr Sapkota two SMS reminders on 17 and 21 October 2016.[43]
[43] CB 288 at [9]: CER15 v Minister for Immigration [2016] FCA 1057 at [42] (Markovic J); SZOPV v Minister for Immigration [2016] FCA 514 at [13] (Pagone J)
The circumstances of this case demonstrate that the Tribunal's exercise of its discretion under s.362B(1A)(a) of the Migration Act fell within the range of possible, acceptable outcomes that are defensible in respect of the facts and law.[44]
[44] Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [105]; Minister for Immigration v SZVFW [2018] HCA 30 at [9], [70], [123], [141]
Conclusion
I conclude that Mr Sapkota has failed to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 November 2018
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