SIKDAR v Minister for Immigration

[2018] FCCA 1203

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIKDAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1203

Catchwords:
MIGRATION – Partner visa – sponsor withdraws sponsorship – contends marriage a sham – applicant invited to comment – fails to comment despite several extensions of time to do so – applicant makes claim to qualify for visa on ground of family violence – ground advanced as basis for judicial review wholly generalised – applicant failing to file amended application, provide particulars or submissions – criteria applicable to claim for non-judicially determined family violence – criteria not met – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr 8.01, 44.12

Migration Act 1958 (Cth), ss 36, 65, 476

Migration Regulations 1994 (Cth), reg 1.03, 1.23, 1.24, 1.25, Sch 2 cl 801.21, 801.22
Ministerial Instrument IMMI 12/116

Cases cited:

AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

MZARG v Minister for Immigration and Border Protection[2018] FCA 624
WZAVW v Minister for Immigration and Border Protection[2016] FCA 760 

Applicant: CHAYAN SIKDAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3245 of 2014

Judgment of: Judge A Kelly

Hearing date: 14 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Melbourne

Delivered on: 15 May 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Montelban

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the First Respondent of:

   (a)the hearing held on 29 January 2018, fixed at $810.

   (b)the hearing held on 14 May 2018, fixed at $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 3245 of 2014

CHAYAN SIKDAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

1. By application filed on 21 November 2015, judicial review is sought of a decision of the then Migration Review Tribunal made on 23 October 2014 affirming a decision of a delegate of the first respondent (Minister).  The Tribunal refused his partner visa application. 

2. The applicant is a national of Bangladesh aged 34 years who travelled to Australia on 8 March 2003 for the purposes of study.  From the materials before the Tribunal it appears that in 2010 the applicant was excluded from completion of his course.

3. On 15 March 2010, the applicant made application for a partner visa on the basis of his relationship with his sponsor, Ms Psarropoulos to whom he was married on 8 March 2010.  According to his application, the applicant had known Ms Psarropoulos for three months before their relationship began. The application disclosed that Ms Psarropoulos had a child from a previous relationship.

4. The applicant provided a statement outlining the history of his relationship with his sponsor.

Background

1. On 20 May 2011, the applicant was granted a Partner (Temporary) Class UK (subclass 820) visa.

2. By letter dated 9 July 2012, the sponsor wrote to the Department recording her decision to withdraw her sponsorship and advising that she had been separated from the applicant since April 2011. The sponsor’s letter suggested that she considered the marriage to be a sham stating:

   After two years of marriage, his parents back in Bangladesh have no knowledge of our marriage in this whole time let alone even knowing that I had existed, which leads me to believe that the purpose for this marriage was not for his own convenience and purely for Permanent Residency.

3. Responding to an invitation from the Department of Immigration and Citizenship, by letter dated 24 August 2012, the applicant’s immigration lawyers notified the Department that they had received instructions to act and requested a further 28 days within which to respond.  The applicant’s request for an extension of time was granted. 

4. A further two extensions of time were granted allowing the applicant until 23 October 2012 to provide a response to the sponsor’s letter.

5. The applicant’s lawyers responded on that date by advising that their request for a copy of the Department’s file pursuant to a freedom of information request had not yet been the subject of a response.

6. Ultimately, the applicant did not respond to the invitation to comment upon the sponsor’s letter stating that the applicant and the sponsor were no longer in a relationship.  Before me the applicant said that the suggestion by the sponsor made in her letter that the parties had separated in April 2011 was wrong and that they had in fact separated at a much later date.  I pointed out to the applicant that he had been represented by his immigration lawyers at that time and that the sponsor’s letter had not been responded to despite a series of extensions of time in which to do so.

7. On 12 June 2013, a delegate of the Minister refused the partner application and provided a decision record containing the reasons for that decision. The delegate concluded that the applicant could not satisfy certain sub-cl 801.221 of the Migration Regulations 1994 (Cth) which contain the primary criteria applicable to an application for a partner visa, which were to be satisfied at the time of the application.

Tribunal proceedings

1. By letter dated 8 July 2013, the applicant’s immigration lawyers lodged an application for review of the delegate’s decision by the then Migration Review Tribunal.

2. On 3 July 2014, the Tribunal wrote to the applicant’s lawyers inviting him to appear before the Tribunal to give evidence and present arguments in relation to the issues arising upon the delegate’s decision.

3. The hearing before the Tribunal was scheduled to occur on 27 August 2014; however, on the previous day, the applicant’s lawyers requested the postponement of the hearing and supplied a medical certificate which indicated the applicant was suffering “from a medical condition” and stating that he was “unfit for work for three days.”

4. On the morning of the hearing, on 3 September 2014, the applicant’s immigration lawyers transmitted a letter recording the circumstances upon which he relied in relation to the merits review application. The applicant’s letter sought to explain the breakdown of his relationship with his sponsor and the distress which he claimed to have suffered by reason of the sponsor’s verbal abuse and her affair.

5. The applicant appeared before the Tribunal with his immigration lawyer.  On 4 September 2014, the Tribunal supplied the applicant with a copy of the recording of the hearing that was held the previous day.

6. On 17 September 2014, the applicant’s immigration lawyers wrote to the Tribunal stating that the applicant had obtained a referral to a psychologist and, for that reason, requested a further 28 days within which to provide the Tribunal with a report concerning the psychologist’s assessment of the applicant. The request for an extension was granted with the Tribunal requesting the provision of the psychologist’s report by 3 October 2014.

7. By letter dated 14 October 2014, the applicant’s immigration lawyers furnished the Tribunal with a report from Dr Dulip Dharmage, psychiatrist.  I note this report had been prepared on 3 October 2014.

8. On 23 October 2014, the Tribunal affirmed the decision of the delegate not to grant the applicant a partner visa. The substantive bases on which the Tribunal grounded its decision was that it was satisfied the applicant’s partner relationship with his sponsor had ceased and was not satisfied that the applicant’s claim to have suffered family violence committed on him by the sponsor was made out.

Procedural History

1. As noted, the application was filed in this Court on 21 November 2015.

2. The applicant’s affidavit affirmed in support of the application exhibited a copy of the Tribunal’s decision, and a covering letter giving the applicant notice of the decision together with certain information relating to that decision.

3. By a response filed on 5 December 2014, the Minister opposed the grant of relief sought in the application and, after noting the single ground of review that was relied upon, stated as follows:

   . . . the MRT records, at [17] – [18], that additional time was in fact extended to the applicant on two occasions, to submit the requisite evidence of a family violence claim. That evidence was not submitted, despite ample and sufficient opportunity.

   The contention advanced by the response is confirmed by an examination of the Tribunal’s reasons at [17]-[18].

4. On 12 March 2015, orders were made dispensing with a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) and orders were made regulating the preparation of the matter for a final hearing including that the applicant have opportunity to file any amended application with particulars, evidence and submissions. The application was set down for final hearing on 2 June 2016.

5. In January 2016, the applicant’s immigration lawyers withdrew from their representation in the proceeding.

6. On 25 May 2016, the Minister filed submissions addressing the application for review.

7. On 2 June 2016, an order was made, by consent, transferring the proceeding to the Victorian Registry of the Court pursuant to r 8.01 of the Federal Circuit Court Rules 2001.  The matter was then listed for hearing on 29 January 2018.

8. On that date, there was no appearance by or on behalf of the applicant.

9. The applicant was contacted by telephone and it was necessary to conduct a directions hearing by that means so as to advance the hearing and determination of the application.  The matter was fixed for hearing on 14 May 2018.  The applicant was given further opportunities to file and serve any affidavits or submissions on which he proposed to rely.

10. In the period of three years since the making of orders setting the matter down for hearing, the applicant has not taken the opportunity to file any amended application, provide detailed particulars of the ground of review, evidence or submissions. 

11. The applicant then contended that he had not been provided a copy of the Minister’s outline of submissions.  After further discussion, the hearing was stood down to allow the applicant an opportunity to consider those submissions.  I note the submission of counsel that the Minister’s outline of submissions had been served on 25 May 2016.

Judicial review

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).

2. The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been ‘satisfied’: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].

   Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].

3. The criteria for a partner visa are set out in Schedule 2 to the Migration Regulations 1994. Sub-class 801 of Schedule 2 of the Migration Regulations 1994 prescribes the primary and secondary criteria that must be satisfied in relation to a partner visa application at the time of the decision.  By sub-cl 801.21, no criteria are to be satisfied at the time of application.  Sub-clause 801.22 prescribes the criteria which must be satisfied at the time of the decision.  Where the criteria prescribed for such visa have been not been satisfied, the application must be refused.

Consideration

1. As the applicant has not taken the opportunity to file a supplementary Court Book or any submissions, the Minister and in turn the Court are left to discern the existence of jurisdictional error from a ground which is devoid of particulars.  In WZAVW v Minister for Immigration and Border Protection[2016] FCA 760 Gilmour J said at [35]:

   . . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed (Citations omitted)

   See also MZARG v Minister for Immigration and Border Protection[2018] FCA 624 at [25], (McKerracher J)

2. Although the application was open to dismissal on the basis that the ground of review is devoid of particulars, I have considered for myself the reasons of the Tribunal and the materials before it.  The applicant appeared before me with the assistance of an interpreter and I recognise that he was unfamiliar with Court process: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)]. Nonetheless, he demonstrated to me, both at this hearing and at the earlier hearing conducted on 29 January 2108, that he was an articulate man with a strong command of written and spoken English.

3. The application contains a single ground of review:

   The Tribunal denied the Applicant procedural fairness.

   Particulars

   The Applicant sought further time to submit the required evidence to establish family violence and the Tribunal declined to give Applicant such further time.

4. Consideration of the merit of this ground, as particularised, requires that the reasons of the Tribunal be examined.

5. The ground of review is focussed upon the claim of family violence which was articulated for the first time on the day of the Tribunal hearing on 3 September 2014.  As the applicant has not taken the opportunity to file any submissions, the Minister and in turn the Court are left to attempt to discern the existence of jurisdictional error. 

6. There has been no judicial determination which turned upon an allegation that the applicant has been the victim of or subjected to domestic violence by his sponsor.  For the applicant to obtain a partner visa based upon his having been the subject of domestic violence by his sponsor it was necessary for him to satisfy the criteria applicable to a non-judicially determined claim to family violence.

1. Evidentiary requirements to establish family violence

1. The Tribunal was correct in concluding at [34] that the applicant did not satisfy the evidentiary requirements necessary to establish a non-judicially determined claim to family violence.

2. Paragraph 801.22(6)(b) prescribes the criteria which must be satisfied where the applicant’s relationship with their sponsor has ceased.  Relevantly, the applicant needed to satisfy the requirement that he had suffered family violence that was committed by his sponsor: para 801.22(6)(c)(i)(A). 

3. The expression ‘family violence’ is not defined by reg 1.03. However, Division 1.5 of the regulations which comprise regs 1.21 – 1.29 contains special provisions that relate to family violence for the purposes of the Act: see, in particular, regs 1.21 – 1.24.

4. By operation of reg 1.23(9), the applicant’s application for a partner visa was taken to include a claim of non-judicially determined family violence where each of the criteria in that regulation was met.

5. Relevantly, by reg 1.23(9)(c), the applicant, or a person on his behalf, was required to present evidence in accordance with reg 1.24 that the applicant had suffered family violence (as defined), and that the sponsor had committed that violence.

6. Regulation 1.24, which is titled Evidence, required that the applicant had furnished a statutory declaration under reg 1.25 together with the “type and number of items of evidence specified by the Minister by instrument in writing” for the purposes of para 1.24(b).

7. The applicant had supplied a statutory declaration under reg 1.25. Thus, the remaining criterion to be satisfied was that the applicant had furnished the type and number of items of evidence as specified by the Minister. The relevant Ministerial Instrument is IMMI 12/116.

8. Ministerial Instrument IMMI 12/116 specifies the types of evidence that are required together with the number of items of evidence which are required for the purposes of para 1.24(b). Schedule 1 to IMMI 12/116 requires that a minimum of two items of evidence from that schedule (and not more than one item of each type of evidence) be presented for the purposes of reg 1.24(b).

9. As noted above, the applicant submitted a report from Dr Dharmage dated 3 October 2014 which constituted one item of evidence which was an acceptable type of evidence for the purposes of reg 1.24(b). The Tribunal found, correctly, that this was so: Reasons, [31].

10. As the Tribunal then found, no other evidence was provided and the applicant did not satisfy the evidentiary requirement for a minimum of two items of evidence in accordance with Schedule 1 to IMMI 12/116.

11. The Tribunal found, correctly, that the applicant had not satisfied that the requirements for a claim for non-judicially determined family violence: Reasons, [32]-[35]. On that basis that Tribunal affirmed the decision of the delegate to refuse the partner visa application: Reasons: [36].

12. Before me, the applicant contended that since 29 January 2018 he had been preparing evidence that is contained in his motor vehicle which has been impounded.  The applicant would invite the Court to undertake a review of the merits of the Tribunal’s decision.  It is no part of the process of judicial review for this Court to undertake a merits review of the application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

1. Procedural fairness

1. As concerned the alleged denial of procedural fairness, this claim was grounded upon the contention that the applicant had sought further time and been denied that opportunity by the Tribunal. 

2. In the course of discussing his claim, when the ground of his application for review was put to him, the applicant frankly conceded that the Tribunal had afforded him sufficient time to produce evidence of the sponsor’s family violence. 

3. The applicant’s concession wold seem sufficient to dispose of the application however, I have examined the decision of the Tribunal and the material before it for myself.

4. The contention that the applicant had not been afforded sufficient time to address the dispositive issues before the Tribunal is to be assessed in part upon the history of the matter as detailed above.  The history is replete with requests for extensions of time and I do not repeat it. 

5. The applicant submitted that he had not appreciated until the hearing before me of the requirement to follow the procedure to establish a claim to family violence.  Difficulties in this submission are that the applicant was represented before, during and after the Tribunal hearing and that he was also present at that hearing.

6. From his perspective, he had been in a relationship and for that reason had no reason to be collecting evidence of family violence at that time.  The violence seemed grounded upon a phone call from the sponsor’s brother in the course of which call the applicant had been abused on account of the brother’s perception that the applicant had made the sponsor cry and the threats that followed.

1. The first suggestion of family violence emerged on the day of the Tribunal hearing.  The Tribunal clarified that such a claim was being made: Reasons, [17].  Upon the applicant’s immigration lawyer confirming that such a claim was being made, the applicant was afforded time to make out that claim: Reasons, [17]. 

2. In my view, there is no merit in the contention that the applicant ought to have been afforded further time to make out his application.

3. It follows that I reject the ground on which judicial review is sought and that the application must be dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date: 15 May 2018

CORRECTIONS:

1. Reasons for Judgment: Page 5 and 6, Paragraph 32 delete paragraph and insert revised paragraph.