Shakya v Minister for Immigration

[2019] FCCA 2994

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAKYA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2994

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.351

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Lat (2006) 151 FCR 214

NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: ANITA KUMARI SHAKYA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 272 of 2019

Judgment of: Judge Driver

Hearing date: 21 October 2019

Delivered at: Sydney

Delivered on: 21 October 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Perotti of Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 272 of 2019

ANITA KUMARI SHAKYA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Ms Shakya, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 17 January 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Shakya a temporary partner visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 14 October 2019. 

2. Ms Shakya, a citizen of Nepal, first entered Australia on 24 September 2003 as the holder of a Cultural/Social Entertainment (Subclass 420) visa.[1] She has an extensive immigration history under two identities which use the same name with different birthdates. The first identity, which used a birthdate of 3 July 1979, was used to enter Australia and subsequently to apply for a protection visa, which was refused on 3 November 2003.[2] The second identity used a birthdate of 13 July 1986 and was used to obtain a student visa and several dependent visas.[3] The first identity was assessed by the Minister’s Department as bogus.[4]

   [1] Court Book (CB) 189

   [2] CB 189-190

   [3] CB 190-193

   [4] CB 189

3. On 23 November 2013, Ms Shakya applied for the visa currently in issue using her second identity.[5] Her current husband was listed as the sponsor (sponsor).[6] On 7 June 2016, the Minister’s Department sent a procedural fairness letter to Ms Shakya putting to her that it had received unfavourable information regarding her two identities, and inconsistencies as to her residential addresses and prior marriages.[7] On 19 July 2016, Ms Shakya responded.[8] On 16 December 2016, the Minister’s Department sent a further procedural fairness letter inviting Ms Shakya to comment on evidence that she had provided bogus documents regarding her education in Nepal.[9]  Ms Shakya responded confirming that those documents were bogus.[10]

   [5] CB 7-127

   [6] CB 132-136

   [7] CB 150-153

   [8] CB 156-178

   [9] CB 179-182

   [10] CB 183-185

4. On 16 February 2017, the delegate refused to grant the visa.[11] The delegate found that Ms Shakya did not meet the requirements of Public Interest Criterion 4020 (PIC 4020) for the purpose of clause 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[12]

   [11] CB 189-212

   [12] CB 210-211

5. On 3 March 2017, Ms Shakya applied to the Tribunal for review of the delegate’s decision.[13]  On 2 July 2018, the Tribunal invited Ms Shakya to attend a hearing.[14]  That hearing was postponed to 1 August 2018.[15] On 28 July 2018, Ms Shakya’s representative provided submissions to the Tribunal.[16] On 1 August 2018, Ms Shakya appeared before the Tribunal with her representative.[17] On 17 January 2019, the Tribunal affirmed the delegate’s decision.[18]

   [13] CB 231-232

   [14] CB 240-241

   [15] CB 250-251

   [16] CB 441-460

   [17] CB 461-463

   [18] CB 468-486

The Tribunal’s decision

1. The Tribunal identified that the issue in the review was whether Ms Shakya met PIC 4020, as required by clause 820.226.[19]  The Tribunal set out Ms Shakya’s lengthy immigration history.[20]  It recorded that she did not disclose her first husband, second husband, associated marriage certificates and another child on the current application, all of which were disclosed to the then Refugee Review Tribunal in 2004.[21]

   [19] CB 469, [6]

   [20] CB 470-471, [13]-[18]

   [21] CB 471, [20]

2. The Tribunal identified that in Ms Shakya’s response to the delegate’s first procedural fairness letter, she admitted she entered Australia with a bogus identity and that her marriage to that spouse was contrived so as to assist her entry into Australia.[22]

   [22] CB 471, [23]

3. The Tribunal asked Ms Shakya about her previous marriages and she admitted they were “fake marriages” and that she was only formally married to the sponsor. The Tribunal put to Ms Shakya that her history of providing false documents impacted negatively on her reliability as a witness and her credibility.[23] Ms Shakya blamed her previous migration agent,[24] but then conceded she had sent false documents deliberately and was “extremely sorry about that fact”.[25]

   [23] CB 471-472, [24]-[26]

   [24] CB 471-472, [24]

   [25] CB 472, [28]

4. Having regard to Ms Shakya’s own admission, the Tribunal found she had provided four bogus educational documents to the Minister’s Department for her student visa and her current visa application. In addition, the Tribunal found she failed to include crucial information regarding her previous marriages in answer to the question on Form 47SP of her current visa application, thus giving information which was false and misleading in a material particular.[26]  Accordingly, the Tribunal was not satisfied that Ms Shakya met PIC 4020(1).[27]

   [26] PIC 4020(5); CB 473-474, [33]-[36]

   [27] CB 474, [37]

5. The Tribunal was not satisfied that the requirements of PIC 4020(1) or (2) should be waived[28] and proceeded to consider Ms Shakya’s “comprehensive submissions” in respect of whether compassionate or compelling circumstances existed to justify the grant of the visa.[29]

   [28] CB 474, [40]

   [29] CB 474-477, [43]

6. The Tribunal considered Ms Shakya’s submission that relocation would cause hardship for her family and that her daughter would be psychologically affected.[30] The Tribunal accepted the sponsor may remain in Australia with or without the daughter. However the Tribunal found this was a decision for the parties to make[31] and that any separation could be assuaged by telecommunications.[32] Further, the Tribunal found there was nothing preventing the sponsor relocating to Nepal temporarily.[33] For these reasons, the Tribunal did not accept Ms Shakya’s claims of potential hardship.[34]

   [30] CB 478, [45]-[47]

   [31] CB 478-479, [48]

   [32] CB 479, [51]

   [33] CB 479, [50]

   [34] CB 479, [52]

7. The Tribunal considered Ms Shakya’s submission that the Nepalese health care system would be inadequate for her daughter. On the basis of country information, the Tribunal accepted there were different health care standards between Australia and Nepal. However, it found there was no evidence that Ms Shakya’s daughter could not receive private health care.[35] Further, the Tribunal referred to the lack of evidence about any apparent inadequacy of health care in relation to her other daughter in Nepal and was not satisfied that this justified the grant of the visa.[36]

   [35] CB 479-480, [53]-[54]

   [36] CB 480, [55]

8. The Tribunal also considered Ms Shakya’s long-standing relationship with the sponsor and the hardship suffered by any separation. The Tribunal weighed this claim with Ms Shakya’s extensive adverse visa history, false and misleading documentation in respect of her marriages and her poor credibility. It was not satisfied on balance that this constituted a compassionate or compelling circumstance to justify the grant of the visa.[37]

   [37] CB 480-481, [56]

9. In relation to Ms Shakya’s submission of potential financial hardship, the Tribunal found the parties had decided on their own volition to take out a mortgage and were aware of any impact Ms Shakya’s visa history would have had on their finances. In those circumstances, it found the potentially detrimental financial impact of the daughter remaining in Australia or accompanying her mother to Nepal was not a compassionate and compelling circumstance to justify the grant of the visa.[38]

   [38] CB 481, [57]-[58]

10. On the basis of country information, the Tribunal rejected the claim that the new Constitution of Nepal made it difficult for Christians to live in Nepal.[39] Nor did it accept that the daughter’s moral development would be compromised by Nepalese society and found the concern was “unwarranted”.[40]

    [39] CB 481-482, [59]-[62]

    [40] CB 482-483, [63]-[64]

11. The Tribunal was not satisfied that Ms Shakya’s circumstances constituted compassionate or compelling circumstances. In making its decision, it had regard to the Convention on the Rights of the Child and the impact the decision might have on Ms Shakya’s daughter. The Tribunal was not satisfied on the cumulative evidence that the daughter’s “temporary” relocation to Nepal would be prejudicial.[41]

    [41] CB 483, [66]-[67]

12. On that basis, the Tribunal found that PIC 4020 should not be waived and that Ms Shakya did not satisfy PIC 4020 for the purposes of clause 820.226. Accordingly, it affirmed the decision under review.[42]

    [42] CB 483, [68]-[71]

The current proceedings

1. These proceedings began with a show cause application filed on 12 February 2019.  Ms Shakya continues to rely upon that application.  It is supported by a short affidavit filed with it which I received as a submission. 

2. I have before me as evidence the court book filed on 4 April 2019. 

3. At the commencement of today’s hearing, Ms Shakya sought an adjournment and the provision of pro bono legal assistance.  I refused that application, essentially, on the basis that the purpose of today’s show cause hearing was to determine whether any arguable case of jurisdictional error could be identified.  It is only then that a meaningful decision could be made whether to arrange for pro bono representation.  As I said to Ms Shakya, in the absence of a viable legal argument, the provision of pro bono representation and an adjournment of the proceedings could not be justified. 

4. I invited oral submissions from Ms Shakya.  Those submissions went to the merits of the Tribunal decision and, in particular, the circumstances of her child and her partner who are Australian citizens.  Ms Shakya is also concerned about the financial consequences of an enforced separation, given that she and her partner have purchased a house with a mortgage.  These were matters considered by the Tribunal.

5. Ms Shakya was supported in her oral submissions by her partner who made very similar submissions. The submissions go to the question of whether the family’s personal circumstances should be accepted as compassionate and compelling. That was for the Tribunal to decide, not the Court. I have informed Ms Shakya and her partner of the opportunity to make a submission to the Minister under s.351 of the Migration Act 1958 (Cth) (Migration Act).

6. The application raises four grounds of review (errors in original, and particulars omitted):

   1. The Tribunal didn’t follow the procedural fairness and didn’t apply its own guidelines while making the decision.

   2. It fail to acknowledge that children’s life is very danger in Nepal specially under 5.

   3. Tribunal fail to acknowledge that my husband is an Australian Citizen, even though he was born in Nepal, He only have Australia citizenship. Nepal does not have dual citizenship. My husband is not qualified to get working visa in Nepal.

   4. The Tribunal made denial of natural justice by not allowing my Child have both parents to support and raise her in her early life.

7. I agree with the Minister’s submissions on those grounds subject to the qualification that, while the sponsor was a Nepali citizen when the partner visa was lodged, he became an Australian citizen in 2014 on 20 May and the couple’s daughter is also an Australian citizen.

8. Ground 1 alleges that the Tribunal did not follow procedural fairness, or apply its own guidelines. The particulars to the ground reproduce PIC 4020(4)(b). Ms Shakya’s contention by this ground appears to be an assertion that the Tribunal failed to consider whether compassionate or compelling circumstances existed that affected the interests of the sponsor and Ms Shakya’s daughter.

9. This ground cannot succeed in circumstances where the Tribunal expressly considered PIC 4020(4)(b) and the evidence provided by Ms Shakya in relation to the interests of the sponsor and their daughter.[43] Having accepted that the sponsor and daughter were Australian citizens, the Tribunal turned to each of the claims advanced and made dispositive findings in respect of separation hardship, psychological impact, inadequate health care, financial burden, the long-standing relationship of the parties, their religion and the daughter’s moral development. This ground, in essence, appears to be a contention that the Tribunal should have found that there were compassionate or compelling circumstances, but fails to identify any arguable case of jurisdictional error in the Tribunal’s conclusion that there were not.  

   [43] CB 474-483, [38]-[68]

10. Ground 2 alleges that the Tribunal failed to acknowledge that “children’s life is very danger” in Nepal. In the particulars in support of this ground, Ms Shakya reproduces certain statistics in relation to infant mortality rates in Nepal. The Tribunal considered Ms Shakya’s claim that her daughter would face difficulties with health care in Nepal, but rejected that claim in light of DFAT[44] country information.[45] Again, Ms Shakya appears to assert that the Tribunal should have come to a different conclusion on the basis of the material before it but does not identify any arguable case of jurisdictional error in those conclusions. The choice and weight of country information was a matter for the Tribunal.[46] Further, the extract provided in the particulars was not information before the Tribunal and therefore no error arises from the Tribunal’s failure to consider it.  This ground too must fail. 

    [44] Department of Foreign Affairs and Trade

    [45] CB 479-480, [53]-[55]

    [46] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]

11. Ground 3 contends that the Tribunal failed to consider whether compelling and compassionate circumstances affected the interests of the sponsor on the basis that he was a foreign national who would need to obtain a visa to work in Nepal. The Tribunal’s decision record plainly reveals that it had regard to the sponsor’s circumstances in determining whether there were compelling and compassionate circumstances to waive PIC 4020. However, the Tribunal cannot have erred in failing to consider a claim that was not advanced to it. It was for Ms Shakya to give evidence and present evidence in relation to whether there were compelling and compassionate circumstances to justify waiving PIC 4020.[47]

    [47] Minister for Immigration v Lat (2006) 151 FCR 214

12. On the material before the Court, there was simply no information before the Tribunal to indicate that the sponsor was unable to obtain a working visa in Nepal, because he was apparently no longer a Nepalese citizen. The sponsor was a Nepali citizen when the partner visa was lodged, he became an Australian citizen on 20 May 2014 May and the couple’s daughter is also an Australian citizen.

13. No arguable case of error is revealed in the Tribunal’s findings in this regard on the evidence before it. Further, Ms Shakya had been on notice from the delegate’s decision of the consideration that there were not any impediments to the sponsor (and child) returning to Nepal with Ms Shakya.[48]

    [48] CB 205

14. The particulars in support of Ground 3 refer to information that “Foreign nationals are allowed to accept job and work in Nepal” and sets out the process for non-Nepalese citizens to apply for a working visa. It is unclear what relevance this “information” has to Ms Shakya’s case or how it supports her argument. In any event, this was not information before the Tribunal. 

15. Ground 4 alleges that Ms Shakya was denied procedural fairness because the Tribunal did not allow her child to have both parents to “support and raise her in her early life”. It is unclear what contention is being made by this ground, but I have treated it as a complaint that the Tribunal should have come to a different conclusion on the basis of the evidence before it (particularly about the potential separation of the applicant from her child and/or spouse), thus inviting the Court to engage in an impermissible merits review. No arguable error is identified by this ground.

16. In my view, the Tribunal considered all of the issues raised by Ms Shakya bearing on the issue of whether compassionate and compelling circumstances existed.

17. The procedure followed by the Tribunal was consistent with its obligations under the Migration Act. I can see no viable argument of jurisdictional error by the Tribunal.

18. I conclude that Ms Shakya is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed under rule 44.121(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

19. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Ms Shakya claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. 

20. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 October 2019