Sidhu v Minister for Immigration

[2015] FCCA 507

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 507

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – Partner (Permanent) (Class VS) visa – no jurisdictional error.

PRATICE AND PROCEDURE – Summary Dismissal – application summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476
Migration Regulations 1994, Schedule 3, cl.820.211(2)(d)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: HARWINDER SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 338 of 2015

Judgment of: Judge Street

Hearing date: 5 March 2015

Date of Last Submission: 5 March 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Self-Represented.

Counsel for the Respondent: Mr Pinder

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The application be summarily dismissed.

2. Applicant pay the First Respondent’s costs fixed in the sum of the $1367. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 338 of 2015

HARWINDER SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of which the applicant is seeking to challenge the proceeding of the Tribunal, made on 6 November 2013, refusing a Partner (Temporary) (Class UK) visa and a Partner (Permanent) (Class VS) visa respectively. 

2. The grounds of alleged error are as follows:

   1. My application was refused on the basis of not meeting Schedule 3.

   2. I had provided DIBP office my evidence of compelling reason which they did not accept, sue to this stress, it put a large impact on my relationship. While my application was in MRT, I also told the case officer that my relationship had broken down. After the hearing of MRT, I reconciled with my partner as we cannot live apart, it was temporary separation due to some misunderstanding and we are now together again.

   3. I trust that I was unable to provide good reasons of my compelling circumstances to Migration Review Tribunal due to level of Stress and Ups and downs in my relationship with my partner.

   4. I truly believe that I have compelling and compassionate reasons for seeking a waiver of Schedule 3 and firmly believe that I should be granted a visa.

3. In the return date on the application in the original jurisdiction, it is noted that the Court may hear and determine all interlocutory or final issues, or may give directions for future conduct of the proceedings.  In this matter, having looked at the decision and the grounds of the application, the Court formed a view that there was a question as to whether the proceedings had a reasonable prospect of success.

4. At the calling of the matter, the applicant was informed that the Court was concerned that the application did not identify any jurisdictional error. The applicant admitted that there was non-compliance in relation to Schedule 3, but asserted that the Tribunal failed to give proper consideration to the compelling circumstances. In considering exercise of the Court’s power under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles in caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

5. In relation to the decision of the Tribunal delivered on 16 January 2015, the reasons identified:  the refusal by the delegate on 6 December 2013, and that on 2 January 2014, the applicant lodged an application for review, and that the applicant appeared before the Tribunal on 14 January 2015. 

6. The Tribunal set out the personal background in relation to the applicant, and identified that in the present case the real issue is whether the applicant held a substantive visa at the time or his application heard in reply within 28 days of the day of his last substantive visa had ceased, and if not, whether there were compelling reasons not to apply the Schedule 3 requirements.

7. The Tribunal turned to the requirements under Schedule 3, and noted:

   14. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

8. The issue in the present case is whether the applicant satisfied the Schedule 3 criteria, unless there are compelling reasons for not applying those criteria. These criteria are set out:

   Schedule 3

   3001

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

   (2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)     if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

   (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

   (c) if the applicant:

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

   (ii)     entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

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

   (iv)    the day when the applicant last entered Australia unlawfully; or

   (d)     if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

   (i) the day when that last substantive visa ceased to be in effect; and

   (ii)     the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

   3003

   If:

   (a)     the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

   (b)     on 31 August 1994, the applicant was either:

   (i) an illegal entrant; or

   (ii)     the holder of an entry permit that was not valid beyond 31 August 1994;

   the Minister is satisfied that:

   (c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

   (d)     there are compelling reasons for granting the visa; and

   (e) the applicant has complied substantially with the conditions that apply or applied to:

   (i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

   (ii)     any subsequent bridging visa; and

   (f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

   (g)     the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)     the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

   3004

   If the applicant:

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

   (b)     entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

   the Minister is satisfied that:

   (c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

   (d)     there are compelling reasons for granting the visa; and

   (e) the applicant has complied substantially with:

   (i) the conditions that apply or applied to:

   (A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

   (B) any subsequent bridging visa; or

   (ii)     the conditions that apply or applied to:

   (A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

   (B) any subsequent bridging visa; and

   (f) either:

   (i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

   (ii)     in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

   (g)     the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)     if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

9. The Tribunal addressed the criterion under 3001 and said:

   16. …Having regard to the definition of relevant day in criterion 3001(2), that is the last day when the applicant held a substantive or criminal visa; the Tribunal finds that the applicant did not apply for the visa within 28 days of the relevant day.

   17. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

10. The Tribunal then turned to consider in detail the issue of compelling reasons, and the Tribunal set out what had occurred in relation to the applicant’s sponsor and the de facto relationship.  The Tribunal expressly turned to the compelling reasons:

    26. At the hearing the applicant submitted that there were a number of compelling reasons that the Tribunal should consider to waive the Schedule 3 criteria. He stated that that the sponsor did not want to live in India and her parents had told her that she could not travel there. She did not know the language and it would be hard for her to survive. His sponsor had seen the news on television and was concerned that she may be a risk if she travelled to India. The applicant and his sponsor would both be dependent on his parents if they went to India and it would be difficult for both of them to find work. His sponsor enjoys riding horses and it would be difficult for her to do that in India; particularly in Punjab.

    27. The Tribunal also discussed the matters that the applicant and his sponsor had raised with the Department in their statutory declarations in relation to the Schedule 3 criteria with the applicant at the hearing. These were:

    a) The applicant and his sponsor made a promise to one another they would never be apart. He told the Tribunal that they made that promise when he gave his sponsor the engagement ring;

    b) The applicant’s sponsor would be insecure and alone if he returned to India. She did not want to be apart from the applicant;

    c) They would have financial problems if they moved to India. His sponsor had very limited financial means and it would have been hard for them to survive financially.

    d) The sponsor was working with horses on a full-time basis when the application was lodged and would have been required to leave that work;

    e) It would be hard for his sponsor to leave her career given the lengthy processing periods for a Partner visa;

    f) The sponsor would have difficulty finding work in India. His father is a farmer and it is hard for women to find farm work;

    g) The sponsor would be in danger if she travelled to India. For that reason they made a decision that she would not go there. The applicant told the Tribunal that there is also a significant drug problem in Punjab; and

    h)The sponsor owns a horse which requires regular care. The sponsor did not wish to leave her horse. The applicant told the Tribunal that the sponsor’s parents purchased a property in Campbelltown three to four months ago and the horse is now kept on their property.

    28. The Tribunal has had regard to the fact that the applicant was in Australia unlawfully for a period of around two years and three months from 15 March 2011 until he lodged the application on 11 June 2013. There is no independent evidence to suggest that the applicant made any attempts to regularise his visa status during that period. He gave oral evidence at the hearing that he was aware that his visa had expired and that he worked throughout that period, with the exception of three to four months in 2011 when he ceased work due to his study commitments. The applicant gave evidence at the hearing that he was deceived by the owner of an Indian restaurant who had agreed to sponsor him, but the man later took his money and disappeared. The Tribunal does not accept that this amounts to a compelling reason to exercise the waiver. (emphasis added)

    29. The Tribunal accepts that at the time of application the applicant and his sponsor did not wish to be separated and had made a promise to that effect, but the Tribunal does not consider that unhappiness resulting from separation, potentially for a limited period, is a compelling reason to not apply the criteria. Many couples are required to experience temporary separation at some stage in their relationship. Further, the Tribunal is satisfied that the parties could have continued to provide each other with emotional support using the array of communication tools which are available. The Tribunal is not satisfied that the separation of the parties in these circumstances is a compelling reason not to apply the Schedule 3 criteria. (emphasis added)

    30. The Tribunal is not satisfied that at the time of application the sponsor was financially dependent upon the applicant or that she would suffer psychological or material hardship if he departed Australia. At the hearing the applicant gave evidence that at the time of application his sponsor was employed as a stable hand. The applicant’s sponsor stated in her statutory declaration to the Department that it would be difficult for her to return home to live with her parents because she was living a committed life, but no further information was provided to explain this. The Tribunal notes the applicant’s evidence that his sponsor recently returned to live with her parents when the parties’ relationship broke down. The Tribunal does not accept that the sponsor’s claimed financial or emotional dependence on the applicant is a compelling reason not to apply the Schedule 3 criteria. (emphasis added)

11. The Tribunal considered the other matters that were raised by the applicant, and the Tribunal concluded:

    36. Having considered all the issues raised above, the Tribunal is not satisfied that these matters separately and cumulatively are compelling reasons to not apply the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). (emphasis added)

    37. There is no evidence before the Tribunal indicating that the applicant can meet any of the alternative criteria in cl.820.211(3) – (9).

12. For those reasons, the applicant did not satisfy the criteria for the grant of a visa, and the decision of the delegate was affirmed. 

13. None of the matters raised in the grounds of application identify any potential jurisdictional error, and the assertion that the compelling circumstances were not sufficiently addressed by the Tribunal is one that flies in the face of the analysis set out in the Tribunal’s reasons.  It was open to the Tribunal to come to the findings it did in relation to the compelling circumstances.  This is not a Court of general review in relation to the findings of fact.  The Court is confined to redressing jurisdictional error.  I am satisfied that there is no jurisdictional error in relation to the findings made by the Tribunal as to a want of compelling circumstances.  I am satisfied that the proceedings are doomed to failure in that there is no jurisdictional error in the review and decision of the Tribunal. 

14. In these circumstances, I am clearly satisfied the proceedings have no reasonable prospect of success.  The application is summarily dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 March 2015