Siddiqui v Minister for Immigration

[2020] FCCA 1243

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDDIQUI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1243

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) (Subclass 820) visa – long history – matter remitted once before in accordance with Waensila – whether the Tribunal considered the Applicant’s claims – whether there were compelling reasons for not applying Schedule 3 criteria – whether the Applicant satisfied public interest criteria 4004 – where the Applicant had a debt to the Commonwealth – whether the Applicant was accorded procedural fairness by the Tribunal – no jurisdictional error established – application dismissed.

Legislation:

Migration Regulations 1994, clauses 820.21, 820.211, 820.224 of Schedule 2, criteria 3001, 3003 and 3004 of Schedule 3, criteria 4004 of Schedule 4

Migration Act 1958, s. 357A, Division 5 of Part 5

Cases cited:

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24.

Minister for Immigration and Citizenship v SZRKT [2013] 212 FCR 99

Minister for Immigration and Border Protection v SZSRS [2014] 309 ALR 67
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

Applicant: MOHAMMAD WASIM SIDDIQUI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2445 of 2016

Judgment of: Judge Blake

Hearing date: 14 May 2020

Date of Last Submission: 14 May 220

Delivered at: Melbourne

Delivered on: 14 May 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Advocate for the First Respondent: Mr Simpson

Solicitors for the First Respondent: Clayton Utz Lawyers

ORDERS

1. The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The Application filed on 9 November 2016 be dismissed and such order to become operative from 28 days after the date written reasons are published.

3. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2445 of 2016

MOHAMMAD WASIM SIDDIQUI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 25 October 2016.  In that decision, the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘visa’). 

2. The applicant is an Indian national. He arrived in Australia on 1 August 2007 as the holder of a student visa.  He was granted a second student visa which ceased on 18 May 2012. A third application for a student visa was refused by the Department of Immigration (‘Department’).  That decision was affirmed by the Tribunal, differently constituted, and was also upheld on appeal to this Court on 17 December 2014 and the Federal Court of Australia on 7 April 2015.

3. The applicant applied for the visa the subject of these proceedings on 3 May 2015.  The applicant applied for the visa based on his relationship with his wife, Yuni Lay, otherwise known as the sponsor.  Subsequently, on 13 August 2015, a delegate of the Department refused to grant the applicant the visa. 

4. On 31 August 2015, the applicant applied to the Tribunal for a merits review of the delegate’s decision.  Subsequently, on 18 February 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa (‘first decision’). The applicant applied for judicial review of the first decision on 23 February 2016. On 14 April 2016, consent orders were made in the chambers of Wilson J, the effect of which was to remit the matter back to the Tribunal on account of the Tribunal having made a jurisdictional error. 

5. On 8 June 2016, the Tribunal wrote to the applicant, seeking any further information that he wished to be considered: see Court Book 320-333.  On 22 September 2016, the Tribunal invited the applicant to attend a hearing on 24 October 2016.  The Tribunal also put the applicant on notice that it was not able to make a favourable decision on the material before it. The applicant was asked to provide further information including information as to whether he had an outstanding debt to the Commonwealth or whether he made appropriate arrangements for the payment of the debt: see Court Book 335-346.

6. On 21 October 2016, the applicant replied to the Tribunal stating that he, his sponsor, and his migration agent would not be attending the hearing on 24 October 2016. The applicant also provided a submission to the Tribunal on that date. The submission is set out at Court Book 358. 

7. On 25 October 2016, the Tribunal affirmed the decision not to grant the applicant the visa (‘decision’). The applicant subsequently filed the present application for review on 9 November 2016. On 14 June 2017, the applicant filed written submissions. The Minister has also filed written submissions and provided an electronic bundle of authorities.

The Tribunal’s decision

1. I turn to deal with the regulatory framework and the decision of the Tribunal. The regulatory framework governing the applicant’s visa application relevantly is as follows.

2. First, clause 820.21 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’) set out the criteria to be satisfied at the time of the application. Relevantly, clause 820.211(2)(d)(ii) of Schedule 2 of the Regulations requires an applicant to satisfy the Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The Schedule 3 criteria relevantly provided as follows.

3. Criteria 3001 at subparagraph (1) specifies that:

   ‘The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).’

4. The relevant date is relevantly defined in criteria 3001(2)(c)(i) to be a date on which the applicant:

   ‘(i)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994;’

5. More relevantly criteria 3001(2)(c)(iii) provided that:

   ‘(iii)  the last day when the applicant held a substantive or criminal justice visa;’

6. Further, clause 820.224(1) of Schedule 2 to the Regulations specifies that each member who was an applicant for a Subclass 820 visa is relevantly required to satisfy the public interest criteria set out in, among other places, public interest criteria 4004.

7. Public interest criteria 4004 of Schedule 4 relevantly provided as follows:

   ‘The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.’

8. It is uncontroversial that the applicant last held a substantive visa on 18 May 2012.  It is also uncontroversial that the applicant owed a debt to the Commonwealth at the time the Tribunal came to consider this matter on 24 October 2016.

9. In light of all of the above, the issues that the Tribunal was required to engage with were as follows:

   a)First, whether there were compelling reasons for not applying the Schedule 3 criteria.

   b)Second, whether the applicant was able to meet the criteria in public interest criteria 4004 in relation to the debt.

10. A review of the Tribunal’s decision discloses the following:

    a)The Tribunal recorded the history of the applicant’s visa application: see paragraphs 4-16 of the decision.

    b)The Tribunal identified the issue before it as being the following:

    i)Whether there exists compelling reasons for not applying the Schedule 3 criteria to the applicant; and

    ii)Whether the applicant met the criteria in public interest criteria 4004.

    c)The Tribunal considered whether the applicant met the Schedule 3 criteria, noting that it was not in dispute that the applicant did not have a substantive visa at the time of his application: see paragraphs 19-23 of the decision.

    d)The Tribunal then moved to consider whether there existed compelling reasons for not applying the Schedule 3 criteria, see: paragraphs 24-48 of the decision.

    e)The Tribunal traversed a number matters in reaching its conclusion that there were not compelling reasons to waive the Schedule 3 criteria. These include:

    i)A consideration of the relevant case authorities on what may constitute compelling reasons, see: paragraph 25 of the decision.

    ii)Whether the length of time the applicant has been in Australia constitutes compelling circumstances, see:  paragraphs 26-29 of the decision.

    iii)Whether there was anything in the nature of the applicant’s and sponsor’s relationship which could provide a compelling reason, see: paragraphs 31-34 of the decision.

    iv)Whether the applicant and the sponsor had had a child together. The Tribunal did not accept that the applicant and the sponsor had had a child or that such would provide a compelling reason, see: paragraphs 35-36 of the decision.

    v)Whether the applicant’s debts provide a compelling reason for not applying the Schedule 3 criteria, see: paragraph 38 of the decision.

    vi)Whether the financial circumstances or financial situation faced by the applicant would provide a compelling reason, see: paragraphs 39-41 of the decision.

    vii)Whether the financial circumstances of the sponsor provided a compelling reason, see: paragraphs 42-43 of the decision.

    viii)Whether the sponsor was dependent upon the applicant in any way which provided a compelling reason, see: paragraphs 44 of the decision.

    ix)Whether the applicant faced threats from his uncle in India such as to provide a compelling reason, see: paragraphs 45-46 of the decision.

    x)Whether a combination of all of the factors above would together constitute compelling reasons, see: paragraph 47 of the decision.

    f)The Tribunal considered public interest criteria 4004 and found that the applicant did not satisfy that criteria, see: paragraphs 49-53 of the decision.

    g)As a result of the above, the Tribunal affirmed the decision not to grant the applicant the visa.

The Application for Review

1. The application for review filed on 9 November 2016 contains four grounds of review.  The grounds of review are unparticularised and are as follows:

   ‘1. Tribunal didn’t acknowledge the matter in the right way.

   2. Last time they did the mistake on the matter about my family circumstances.

   3. Tribunal failed to acknowledge that I made an offer that I made arrangement to pay $13,000 debt.

   4. Tribunal made a mistake and didn’t even consider that I got a baby girl.’

2. The applicant in support of the grounds above also filed written submissions.  One aspect of those submissions is an allegation that the solicitors for the Minister conceded that the Tribunal member made a jurisdictional error by failing to take into account:

   ‘…that I made an arrangement to pay $13,000 of debt.’

3. No evidence was placed before the Court in support of this assertion.  It is denied by the Minister’s representatives, who are officers of this Court.  In light of that, I do not propose to entertain that aspect of the applicant’s complaint any further and instead dismiss it.

4. I now turn to deal with the grounds of review. An administrative decision-maker falls into error of law amounting to jurisdictional error, which has the effect of invalidating a decision, if the Tribunal identifies the wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some instances, makes an erroneous finding or reaches a mistaken conclusion. The reasons of a decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to error.  It would be a jurisdictional error were a decision-maker to fail to consider evidence, depending on the importance of that material, see: Minister for Immigration and Citizenship v SZRKT [2013] 212 FCR 99 and Minister for Immigration and Border Protection v SZSRS [2014] 309 ALR 67.

5. At the outset, it must be said that the grounds of review are difficult to comprehend or follow.  In some respects, the grounds of review, the written submission of the applicant and the oral submissions made by the applicant today seek to challenge the merits of the Tribunal’s decision or seek to invite the Court to engage in a merits review.  It is well settled that it is not a function of this Court to engage in merits review, see: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24.

6. One aspect of the written submission filed by the applicant in this matter is his statement that he has been diagnosed with suicidal thoughts and depression. I have been unable to find any reference to the applicant raising that matter as a compelling reason before the Tribunal.  As it was not raised, it was not dealt with by the Tribunal.  The Tribunal has not, therefore, committed any jurisdictional error in failing to address any mental health issue that may have confronted the applicant.

7. Grounds 3 and 4 appear to raise an assertion by the applicant that the Tribunal failed to take into account that he had made arrangements to pay a $13,000 debt and that the Tribunal had failed to consider that he and his wife, the sponsor, had given birth to a baby girl.  It is apparent that the applicant raised issues in connection with the debt and the birth of a baby girl. The applicant submitted a statement to the Tribunal dated 24 October 2016 that is reproduced at Court Book 358. 

8. In that document, the applicant says in the course of two brief sentences that his partner has given birth to the child and that this is a new development. There is no other evidence attached which one might ordinarily expect to see, for example, a birth certificate or photographs. 

9. It equally is the case that the applicant, at least, alerted the Tribunal to the existence of a debt. He did so by submitting a form 1355 by email, which is a statement of financial details. That document is reproduced at Court Book 361-366. 

10. I have already summarised earlier in these reasons the approach of the Tribunal.  In my view, the assertion by the applicant that the Tribunal failed to acknowledge the arrangement to pay the debt or failed to consider the birth of his child is not borne out on the face of the Tribunal’s reasons.  In particular:

    a)At paragraph 38 where the Tribunal is considering the Schedule 3 criteria. 

    b)At paragraphs 51-53 in respect of the public interest criteria 4004 criteria, the Tribunal expressly considered both the debt and the form 1355.  The Tribunal expressed the view that it did not accept that the applicant had incurred significant debts and that such matters did not provide a compelling reason for not applying the Schedule 3 criteria.  Further, at paragraph 53, the Tribunal made a finding that the applicant had outstanding debts to the Commonwealth and that there was no appropriate arrangement for the debt to be paid. 

    c)At paragraphs 35 and 36 of the decision, the Tribunal clearly addressed the matters concerning the birth of the applicant’s child.  The Tribunal made express findings about this, including findings as noted above, that it did not accept that the applicant and his partner had given birth to a child. That finding was open to the Tribunal given there was no independent evidence put before it, such as a birth certificate, to demonstrate the child had actually been born.  The Tribunal also went on to conclude, as a result, that the birth of the child was not a compelling reason. 

11. In addition to the matters above, today in oral submissions, the applicant referred to the effect his removal might have had on his partner and her financial situation.  Again, these are matters that the Tribunal expressly considered and dealt with, see: paragraphs 42-43 of the Tribunal’s decision.

12. Quite apart from the stated grounds of review, I have considered the Tribunal’s reasons for the purpose of ascertaining whether it may have committed any other error of a jurisdictional nature.  As I have noted, it was not in dispute that the applicant last held a substantive visa on 18 May 2012. On that basis, the Tribunal was correct to find that the Schedule 3 criteria could not be met and it was appropriate to turn its mind to whether there were compelling reasons for waiving the Schedule 3 criteria. 

13. What constitutes compelling circumstances has been the subject of comment in this Court and other courts. In MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 Bromberg J held at [10] that:

    ‘…“compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria.’

14. In short, the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria.

15. It is very clear that the Tribunal, very carefully, went through each of the reasons which may constitute compelling reasons to waive the criteria.  So much is evident from a review of the Tribunal’s reasons and from the summary that I have provided earlier in this decision. The Tribunal considered each reason in turn, and it then considered them in combination.  It correctly considered the applicant’s circumstances at the time of the decision rather than at the time of the application, see: paragraph 25 of the Tribunal’s reasons and the statements in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

16. On the basis of the above, I am satisfied the Tribunal engaged in an active intellectual consideration of all of the claims. The Tribunal’s ultimate finding that the applicant did not meet clause 820.221(2)(d)(ii) of Schedule 2 of the Regulations was open to it. I am unable to discern any error in the approach of the Tribunal.

17. In my view, the Tribunal also appropriately considered and engaged with the issues concerning whether the applicant met the criteria set out in public interest criteria 4004. There was an outstanding debt. There was not any evidence that any appropriate arrangements had been entered into to repay the debt or any evidence of negotiations concerning the debt. I have been unable to locate any evidence in the Court Book that would support the case that these matters were not appropriately considered. I am therefore, satisfied that the Tribunal finding that the applicant did not meet the criteria set out in clause 820.224 of Schedule 2 and public interest criteria 4004 was open to it. I am unable to discern any error that has been made by the Tribunal in respect of this approach.

18. I have lastly considered whether the applicant was deprived of any procedural fairness. This is an issue which is to be considered having regard to section 357A of the Migration Act 1958 (‘Act’). That section provides that Division 5 of Part V of the Act is an exhaustive statement of the requirements of the natural justice hearing rule. The review of this matter discloses the following:

    a)The applicant was invited to attend the hearing before the Tribunal, see: Court Book 335-346.

    b)In response to that invitation, the applicant indicated that neither he, nor his sponsor, nor his representative would attend the hearing, see: Court Book 355-357.

    c)The applicant had been given notice of the issues in relation to the decision under review. For example, the Tribunal invited the applicant to comment on the issue concerning compliance with public interest criteria 4004 in its letter to him dated 22 September 2016, see: Court Book 338.  Also, the applicant was already on notice with respect of the issues arising with the Schedule 3 criteria, those issues having arisen in the delegate’s decision. 

1. In light of the above, I am satisfied that the applicant was accorded procedural fairness.  I am therefore satisfied overall that the Tribunal has not committed an error as to jurisdiction.  Accordingly, I dismiss the application for review.

2. I have considered the Minister’s application for costs.  In my view, a cost order is warranted.  The application was wholly unsuccessful and it is an appropriate case in which I would order costs. 

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

Associate:

Date: 19 May 2020