Shaik v Minister for Immigration

[2017] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAIK v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1780

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal failed to consider the applicant’s evidence – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994 (Cth), Schedule 2, cl.820.221.

Applicant: SALEEM SHAIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3215 of 2016

Judgment of: Judge Street

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Sydney

Delivered on: 31 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Wells
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3215 of 2016

SALEEM SHAIK

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (the Tribunal), made on 17 October 2016, affirming the decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of India. On 30 July 2015, the applicant applied for a Partner (Temporary) (Class UK) visa on the basis of a relationship with a Ms Daniela Mantia as the sponsor. On 10 November 2015, the delegate refused the application and found that the applicant failed to meet the criteria for the grant of a visa.

The Tribunal Decision

1. The applicant applied for review on 27 November 2015. By letter dated 2 September 2016, the Tribunal invited the applicant to attend a hearing before it. A response to hearing invitation was returned to the Tribunal on 5 October 2016 partially completed and submitted by the applicant’s agent.

2. On 10 October 2016, the applicant’s agent informed the Tribunal:

   The applicant has advised us today that he and his spouse no longer want to take part in the hearing scheduled for 17 October 2016. Please disregard the previous response to hearing invitation dated 5 October 2016.

3. The hearing invitation, dated 2 September 2016, expressly said that the Tribunal had considered the material before it and it was unable to make a favourable decision on that information alone and it was in those circumstances that the applicant was invited to attend the hearing.

4. On 13 October 2016, the applicant’s migration agent confirmed to the Tribunal that the applicant did not want to attend the hearing. The migration agent told the Tribunal that the applicant understood that the Tribunal would proceed to make a decision on the information before it. The Tribunal recorded that, as the applicant had declined the invitation to appear before it, the Tribunal would proceed to make a decision.

5. The Tribunal identified the relevant criteria under cls.820.211(2)(a), 820.211(2)(d), and 820.221. The Tribunal noted that all three criteria had to be satisfied. The Tribunal referred to the fact that the applicant had provided some evidence to the Tribunal at the time of the visa application and continued to communicate with the Department until November 2015 and, since that time, no evidence whatsoever had been provided by the applicant to the Tribunal as to whether the applicant or sponsor remain or are currently in a spousal relationship.

6. The Tribunal noted that there is no evidence before the Tribunal concerning the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, or the nature of the persons’ commitment to each other.

7. It was in these circumstances that the Tribunal said that it was unable to be satisfied, at the time of decision, whether the parties are in a spousal relationship. The Tribunal found that there was no evidence before the Tribunal that the applicant satisfies any of the alternative criteria. Accordingly, the Tribunal found that the applicant did not meet cl. 820.221 of the Migration Regulations 1994 (Cth) and affirmed the decision under review.

Proceedings before this Court

1. As a result of orders on 22 March 2017, the applicant was given an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

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 a 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, the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if the applicant put submissions, the Court would call upon the solicitor for the first respondent, and then give the applicant an opportunity to put submissions in reply. The Court explained that if the applicant put no submissions, the Court would not call on the solicitor for the first respondent.

4. The applicant confirmed that he had received the first respondent’s submissions and the Court explained that those submissions explained why the first respondent submits that the Tribunal’s decision is not unlawful or unfair and identifies why the first respondent submits that there is no relevant legal error.

5. The applicant declined to put submissions. The applicant did, however, seek an adjournment and asked for more time. The applicant identified that he could not concentrate and that there had been ups and downs in his relationship. The Court inquired as to what would be the utility for the granting of further time and no practical utility was identified. The adjournment was opposed by the first respondent.

6. The applicant commenced these proceedings on 18 November 2016 and was given an opportunity to put on further information and that opportunity was not taken up. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

7. The applicant put no submissions from the bar table in relation to the merits of the application or in support of the single ground in the application.

8. The ground in the application is as follows:

   1. The Tribunal erred by not taking into consideration the evidence of genuine spousal relationship submitted by the applicant.

   Particulars

   Paragraph [7] & [8] of the subject decision.

9. It is apparent, from the Tribunal’s reasons, that the Tribunal had communicated to the applicant its inability to make a favourable decision on the information alone that it had and the need for the applicant to satisfy criteria at the time of decision. There was no material at the time of the decision provided by the applicant and sponsor to the Tribunal and it was in those circumstances that it was open to the Tribunal to make the adverse finding in respect of the time of decision criteria.

10. No jurisdictional error is made out as alleged in Ground 1 of the application. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and complied with the obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  18 September 2017