Simmons v Minister for Immigration

Case •

[2005] FMCA 1636

•

1 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMMONS v MINISTER FOR IMMIGRATION [2005] FMCA 1636
MIGRATION – Visa – Migration Review Tribunal – application for review of visa refusal – Subclass 820 – Partner (Temporary) (Class UK) visa – Partner (Residence) (Class BS) visa – Applicant a citizen of the United States of America.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359, 359A, 359C, 360, 363
Migration Regulations 1994 (Cth), Reg. 1.15A, Schedule 2, Part 820
Federal Magistrates Court Rules 2001, Rule 13.03A (d)

Davis v MIMIA (2004) FCA 686
Zhang v MIMIA (2005) FCAFC 30

Applicant: DARYL MAURICE SIMMONS
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: SYG 3662 of 2004
Delivered on: 1 November 2005
Delivered at: Sydney
Hearing date: 1 November 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance
Counsel for the Respondent: Mr Potts
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the Respondent Minister’s costs fixed in the sum of $4,350.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG of 3662 of 2004

DARYL MAURICE SIMMONS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Migration Review Tribunal made on 10th November 2004. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, finding that the Applicant is not entitled to the grounds of a Partner (Temporary)(Class UK) Visa or a Partner (Residence) (Class BS) Visa.

Background

  1. The Applicant is a citizen of the United States of America who applied for permanent residence on spouse grounds on 6th January 2000.  As the Tribunal explained in paragraph 2 of the decision, a Partner (Residence) (Class BS) Visa normally cannot be granted until two years have elapsed since the lodgement of the application. A Partner (Temporary) (Class UK) Visa can be granted immediately, to permit the Applicant to stay in Australia until a decision is made about the issue of a permanent visa. The process is intended to test whether the relationship is continuing, two years after the visa application, before permanent residence is confirmed.

  2. A delegate of the Minister refused to grant both visas on 1st July 2003.  The Applicant applied to the Migration Review Tribunal on 29th July 2003 seeking a review of that decision. 

  3. The Applicant states that he met his wife in the United States on


    15th April 1981. She is an Australian citizen. She nominated the Applicant for the visas. 

  4. The Applicant and his wife were married in the United States. The marriage certificate produced in support of the application shows that they were married on 25th April 1982. The certificate shows that the marriage was registered on 29th April 1982.  There is one child of the marriage, a boy who was born on 19th April 1989.

  5. The Applicant advised the Department by letter dated 19th May 2001 that he and his wife had decided to separate. On 8th April 2002, the Applicant and his wife entered into consent orders in the Family Court of Australia at Newcastle, providing that the child would live with the mother and the father would have defined contact for two weekends each month and for three weeks during the summer school holidays.

  6. The Minister's delegate found that the relationship between the Applicant and his sponsor at the time of the application did not bear “sufficient of the characteristics of a spouse relationship” as defined in Regulation 1.15A of the Migration Regulations 1994.

  7. The delegate therefore found that the Applicant failed to meet the criteria of Regulation 820.211. As he did not meet Regulation 820.211, the Applicant also failed to meet the criteria at the time of decision as listed at Regulation 820.221(2). As a result he was held not eligible to be granted a Partner (Temporary) visa (Class UK).

  8. Because he did not hold a Partner (Temporary) visa (Class UK) at the time, and had never previously held a visa of that type, the Applicant did not meet the criteria outlined in Part 801.22 of the regulations for the grant of a Partner (Residents) (Class BS) Visa.

The decision of the Migration Review Tribunal

  1. The Applicant lodged his application for review by the Migration Review Tribunal on 29th July 2003. On 16th August 2004 the Tribunal wrote to the Applicant under the provisions of section 359A of the Migration Act 1958, inviting him to comment on certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review. 

  2. The information in the MRT’s letter concerned the Applicant's relationship with one Anna Silvia De Pascali. According to the letter, Ms De Pascali had been removed from Australia as an unlawful non-citizen after she was located by police living at the Applicant's home on 1st February 2000. The Applicant was alleged to have told the police that they had been living together for approximately three months.

  3. The Applicant and Ms De Pascali also came under notice on


    24th March 2000 when Ms De Pascali attempted to re-enter Australia. When interviewed at Brisbane airport, the Applicant was alleged to have told officers of the Department of Immigration and Multicultural and Indigenous Affairs that he and Ms De Pascali had previously cohabited from October 1999 to January 2000 and it was his intention to assist her with living expenses in Australia.

  4. The letter informed the Applicant that the information was relevant to the review as the Tribunal may not be able to find that the Applicant met the definition of spouse. In that same letter, the Tribunal invited the Applicant to give additional information about his case, as is provided for by subsection 359(2) of the Migration Act.

  5. The Tribunal's letter also warned the Applicant that if the Tribunal did not receive any comments from him within 28 days after he was deemed to have been notified, the Tribunal might make a decision on the review without taking any further action to obtain his comments.

  6. The letter informed the applicant that the Tribunal had the power to take this step under the provisions of section 359C of the Act. The Tribunal's letter also warned him that if he did not provide any comments he would not be entitled to appear before the Tribunal.

  7. The Tribunal noted at paragraph 21 of the decision that the Applicant failed to respond to the letter and did not provide any additional evidence. The Tribunal decided to make a decision on the review without taking any further action to obtain the Applicant's comments. The Tribunal also decided not to invite the Applicant to appear before it to give evidence, relying on subsection 363(3) and section 363A of the Act.

  8. The Tribunal then considered whether the Applicant met the considerations for a spousal relationship set out in Regulation 1.15A of the Migration Regulations. The Tribunal made the following findings:

    a)The Applicant and the nominator were married on 22nd April 1982.[1]

    b)There was little evidence of a financial relationship between the parties.

    c)There was very little evidence of any joint or shared household arrangements.

    d)There was a lack of documentary evidence supporting any claim of shared social activities and arrangements.

    e)There was little evidence that the parties had a continuing and genuine relationship at the time of application.

    f)The evidence from a report from an Immigration Inspector cast serious doubts about the level of commitment between the Applicant and the nominator at the time of application.

    [1] It appears that the correct date on the marriage certificate is 25th April 1982.

  9. The Tribunal was not satisfied that the Applicant was in a spousal relationship with the nominator at the time of the visa application. The Tribunal found that the Applicant did not meet essential criteria for the grant of a (Class UK) (Temporary) Visa and therefore did not meet the criteria for a (Class BS) Partner (Residence) visa and affirmed the decision that was under review.

The Application to the Court

  1. The Applicant filed an application for review on 17th December 2004. The application does not set out any orders sought, merely stating that the Applicant disagrees with the decisions, both of the Department and the MRT. Nevertheless, as the application states on its face that it is an application under section 39B of the Judiciary Act 1903 I propose to treat it accordingly.

  2. The only grounds in the application are that the Applicant claimed that he was in a genuine relationship with his wife until their formal separation, about which he informed the Department by his letter of


    19th May 2001. He states that he asked for his case to be considered on compassionate grounds, based on his relationship with his son, who was aged 12 at the time.

  3. The Applicant attended Court by telephone on 12th January 2005 when the application was listed for final hearing at 10:15am today. Despite being directed to do so by 20th April, the Applicant has not filed any Amended Application giving complete particulars of each ground of review nor has he filed any affidavit. The Applicant has not filed any written submissions. 

  4. The solicitors for the Respondent Minister filed an outline of written submissions on 21st October 2005.  Those submissions were drafted by Mr J.A.C. Potts of counsel. 

  5. The Respondent Minister submits that the Tribunal applied the correct law when making its decision having regard to the matters prescribed by Regulation 1.15A.  I was referred to the decisions of Davis v MIMIA [2004] FCA 686 and Zhang v MIMIA [2005] FCAFC 30. Zhang v MIMIA is of course a decision of the Full Court of the Federal Court and is binding on this Court. 

  6. The Respondent Minister also submits that the Tribunal made findings that were open to it on the material before it and the Applicant in his application has not identified any proper ground of review. It is submitted that the Tribunal complied with the provisions of s.359A of the Act and there is no error apparent on the face of the Tribunal's reasons or any other material before the Court.

  7. It is for those reasons that counsel for the Minister submitted that the application should be dismissed with costs. 

  8. The application came on for hearing at 10:15am today. The Applicant has not appeared. The Applicant forwarded a faxed message to the Registrar of the Court which appears to have been received at 12:24pm yesterday. I have admitted the faxed message into evidence and marked it as Exhibit 2.  The letter from the letter states as follows:

    If it please the Court, this is to inform you that due to financial hardship and lack of adequate representation, I am unable to appear before the Court as scheduled on November 1, 2005. 


    I understand that in failing to do so I will forfeit my appeal against the Minister of Immigration to obtain Australian permanent residency but unfortunately I have no choice in the matter.  I had intended to appeal my case on compassionate grounds, being that I have made Australia home since 1999, was previously a permanent resident from 1988 to 1992 and have an Australian born child here.  But circumstances beyond my control prevent me from appearing.  I can be contacted with the Court's decision either by the fax number above or at 18 Fletcher Street, Byron Bay, New South Wales 2481.  Please accept my apologies for the late notice.

  9. I have compared the signature on the letter with the signature that appears on the application that was filed on 17th December 2004.  They appear to me to be similar and of such similarity that I am satisfied that the signature on the faxed letter to the Court is the signature of the Applicant.

  10. Mr Potts of counsel for the Respondent Minister has also submitted a copy of a letter forwarded to the Applicant by express post on


    21st October 2005.  The text of that letter says this:

    We enclose by way of service the Respondent's Outline of Submissions and List of Authorities filed with the Court today.  Please note that your matter is listed for hearing on 1 November 2005 at 10:15am before Scarlett FM at the John Madison Tower, 88 Goulburn Street, Sydney.  If you do not attend the hearing, whether in person or by legal representative, we are instructed to seek dismissal of your application with costs.

  11. In my view, the contents of the Respondent's solicitor's letter to the Applicant make quite clear what their intentions are today if the Applicant should not appear. The Applicant of course has not appeared and has sent a faxed message to the Registrar yesterday informing the Court of his intention not to appear. He makes it clear in his letter in his use of the words:

    I understand that in failing to do so, I will forfeit my appeal against the Minister of Immigration to obtain Australian Permanent Residency.

    He understands that a decision will not be made in his favour. To my mind, the text of the Applicant's letter indicate that, as the Respondent submits, the Court can go further than dismiss the application for


    non-appearance by the applicant under the provisions of Rule 13.03A(c).

  12. Mr Potts of counsel has asked the Court to follow the procedure set out in Rule 13.03A(d), that is to proceed with the hearing generally or in relation to any claim for relief in the proceeding. In my view the faxed letter from the Applicant justifies the Court in taking that step. The Applicant of course has not appeared, and has indicated to the Court that he is not going to appear, and understands the effect that this will have on his case.

  13. I propose therefore to deal with the application under the provisions of Rule 13.03A(d). What that means is that I must examine the material before the Court to consider whether or not the application should succeed. It is not sufficient to rely on the absence of the Applicant in such circumstances. I have read through the decision of the Migration Review Tribunal and I have read through the supporting material contained in the Court book. I have read the Applicant's application, filed on 17th December 2004, and the written submissions filed the solicitors for the Respondent Minister. I have read through the two documents that have been tendered in evidence being Exhibit 1, the letter from the Respondent's solicitor to the Applicant, and Exhibit 2, the faxed message from the Applicant.

  14. I have considered the material contained in Zhang v MIMIA and I have briefly considered the material contained in Davis v MIMIA. The decision in Davis, I note is a decision of a single judge of the Federal Court. At first instance whilst it would not be binding on the Federal Magistrate's Court, I would apply the principle of judicial comity and I would regard that decision as persuasive unless that decision could be distinguished or I was satisfied that it is wrongly decided.  In my view the decision in Davisv MIMIA is on point and in it has not been, with respect, wrongly decided.  The decision of the Full Court of the Federal Court in Zhang v MIMIA is, as I said earlier, binding on the Federal Magistrates Court.

  15. I am referred by counsel to the matter contained in paragraphs 19, 20 and 21 of the decision.  At 19 their Honours said:

    The fact that the Tribunal has not in terms made express findings about each of the matters referred to in placita 1, 2 and 3 of sub-reg 1.15A(3)(c) does not demonstrate in the present circumstance that the Tribunal did not have regard to those matters or to the social aspects of the relationship between the appellant and Mr Czapla from late June 2001.

    Their Honours went on to say in paragraph 20:

    In its reasons the Tribunal did not laboriously evaluate seriatim each of the considerations in reg 1.15A(3), however it did consider evidence adduced by the appellant which appears to fall into each of the specified issues.  In sequence it considered evidence of the couple's financial arrangements (taking into account the appellant's oral evidence as to their arrangements and documentary evidence such as bank and superannuation statements) and then of their household relationship including the circumstances of their living arrangements such as the couple's shared responsibility in caring for Mr Czapla's mother.  It also addressed the evidence of the social aspects of the relationship including that of the sister-in-law and "a number of photos and statutory declarations by mutual friends and the nominator's mother attesting to the genuineness of the relationship" the appellant had provided as well as two more recent statutory declarations of Mr Czapla's mother and of the owner of a grocery store in Sefton.  Those matters point clearly to the Tribunal having addressed each of the matters which reg 1.15A(3) required including that identified by reg 1.15A(3)(c).

  16. Applying their Honours reasoning to the case before me, I am satisfied that the Tribunal has approached the material before it in a logical and sequential way by dealing with the evidence relating to the qualifying elements for a married relationship, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the nature of the persons commitment to each other, and other matters.

  17. I am satisfied that in so doing, the Tribunal has addressed all of the matters that the Tribunal was required to consider under the provisions of Reg 1.15A of the Migration Regulations. I have read the regulations myself in the form in which they existed as at the relevant time.


    As counsel for the Respondent submitted, the application for review provides no grounds for review except a request to reconsider the matter on the merits and particularly for a consideration on compassionate grounds based on his relationship with his son, the child of the marriage.  This is not a ground for review by a Court conducting Judicial Review of a decision by an administrative decision-maker.

  18. As Mr Potts of counsel has pointed out, a reconsideration of the matter on compassionate grounds by substituting a more favourable decision is within the province of the Minister for Immigration and Multicultural and Indigenous Affairs.  The Minister has that power; the Court does not.

  19. I note from the decision of the Tribunal that the Tribunal sought comments from the Applicant by means of its letter dated 16th August 2004 and complied with the requirements of s.359A of the Migration Act. The fact that the Applicant did not reply to that letter and provide any comments, nor did he accept the Tribunal's offer to provide further information, to my mind entitled the Tribunal to make a decision on the review without taking any further action to obtain the Applicant's views. In those circumstances, as the Tribunal rightly recorded, the Applicant was not entitled to appear before the Tribunal.

  20. The Tribunal did however consider all of the material that was before it in a thorough and comprehensive way, mindful of the requirements of the appropriate regulation. There is no error that is apparent on the Tribunal decision or on any of the supporting material. The fact that the Tribunal made a minor error in the date of the Applicant's marriage to the nominator does not, to my mind, constitute a jurisdictional error.  The Applicant had originally claimed to have been married on 22nd April 1982 but a close reading of the marriage certificate indicated that the marriage celebrant declared to have conducted the marriage ceremony on 25th April and the marriage was registered in the appropriate office on 29 April 1982.  That is not an error that affects the decision of the Tribunal in any way.

  21. The application is dismissed.

  22. I would normally have granted leave to join the Migration Review Tribunal as a party to the proceedings.  In this case, as the Applicant has not appeared and in any event his application did not seek any orders effecting the Migration Review Tribunal, there does not appear to me to be any utility in joining the Migration Review Tribunal as a party to the proceedings.  Had I granted the application, then it would have been necessary for the Tribunal to have been a party as the relief that would have been given would have necessarily had an effect upon the Tribunal.  In this case there is no point in joining the Tribunal and I declined to do so.

  1. There was an application for costs. The amount sought is a lump sum of $4,350.00 inclusive of counsel's fees. In my view this is an appropriate matter for a costs order as the Applicant has been wholly unsuccessful. The amount sought is within the scale, in the range of the scale set out in schedule 1 of the Federal Magistrate's Court Rules 2001. Counsel of course had already been briefed well before the applicant forwarded his faxed message to the Court yesterday and this was an appropriate case for counsel in any event.

I certify that the preceding (forty-one) (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  10 November 2005


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