Sohi v Minister for Immigration

[2017] FCCA 1450

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOHI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1450

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32

Applicant: TALWINDER KAUR SOHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1103 of 2016

Judgment of: Judge Vasta

Hearing date: 12 June 2017

Date of Last Submission: 12 June 2017

Delivered at: Brisbane

Delivered on: 12 June 2017

REPRESENTATION

Counsel for the Applicant: Mr W.J. Markwell

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application filed 27 November 2016 be dismissed.

2. That the Applicant pay the costs of the First Respondent of and incidental to these proceedings fixed in the sum of $5,800.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1103 of 2016

TALWINDER KAUR SOHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 27 November 2016, the Applicant, Talwinder Kaur Sohi, applies to this Court for a judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”) made in October 2016 that refused to waive the consideration under schedule 3 that the partner application had to be made within 28 days of the expiration of the last visa that the applicant had. 

2. This matter has had quite a history.  In short compass, this Applicant arrived with her husband in Australia on 6 June 2009.  They were both here pursuant to student visas.

3. The visa was cancelled on 9 November 2010.  The Applicant was granted a bridging visa E on the basis that she was making satisfactory arrangements to depart Australia.  The Applicant was subsequently granted two further bridging visas E and had two periods in Australia as an unlawful non-citizen. 

4. According to the evidence before me, the Applicant and her husband divorced in June 2011.  There were no children of that marriage.  The Applicant had met her current sponsor in about May of 2010, and it seems that in May of 2011, they committed to a long-term relationship.

5. It was in October 2011 that the immigration authorities caught up with the Applicant about her illegal status and it is about that same time that she married the sponsor. 

6. The sponsor is presently 74 years of age, and, as Mr Markwell submitted to me, he originally came from the Netherlands, but has been an Australian citizen since September of 1972, operating a seafood business at Garden City.  The application for the partner visa was lodged on 31 October 2011.  For a reason that has not been explained here, that application was refused on 3 February 2014, some two and a quarter years after it was made.

7. The Applicant lodged a request for review of that decision with the then Migration Review Tribunal on 10 February 2014, and the decision of the delegate was confirmed on 27 May 2015.  An application for judicial review was lodged in the Federal Circuit Court on 16 June 2015.  There was a decision, Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32, which came out after the decision had been affirmed by the AAT.

8. Now that decision, in effect, said that the time to look at compelling reasons as to why there should be a waiver can apply at any time and is not just limited to the circumstances that obtained at the time of the lodging of the application.  Because of that aspect, which was not part of the reasoning of the AAT, there was, by consent, a quashing of the decision of the AAT and a remittal back to the AAT to reconsider and re-determine the review application.  That occurred in August of 2016, and, as I have already indicated, that decision was made on 28 October 2016.

9. The real issue before the Tribunal was this, the Applicant’s visa was cancelled in 2010, and so to make the visa application that she was now making, and to make it in Australia, such application had to be made within 28 days of the finishing of the last visa that the Applicant had. 

10. Obviously, at that time, she had not even actually met her sponsor let alone made a decision to marry him, and so therefore the 28 day criterion was not fulfilled.  The result of not fulfilling this criterion means that the Applicant cannot make her application in Australia and must go back to her country, for which she holds a current passport, and make the application there.

11. However, the Minister can, if there are compelling reasons to do so, waive the requirements under that schedule; that is, that the application be made within 28 days.  The issue then before the Tribunal was whether there are compelling reasons why the Minister or why the Tribunal ought waive that requirement. 

12. Before the Tribunal, the Applicant made many submissions.  The way in which the Tribunal must look at whether there are compelling reasons is not to look at each and every point that the Applicant might bring up and look at that individually to see whether that would, of itself, constitute compelling reasons. Instead, “compelling reasons” must be found by looking at the whole of the evidence in much the same way that one must look at circumstantial evidence. 

13. What must be asked by the Tribunal is, having a look at all of the circumstances together, do the combination of these circumstances amount to compelling reasons? 

14. Firstly, the Tribunal has looked at the length of the relationship.  The relationship has been on foot ever since the marriage occurred and even before the marriage, and that would mean, at the time that the Tribunal looked at the matter, in August 2016, the relationship had been on foot for five years.

15. However, as the Tribunal rightly said at paragraph 35:

    “In the Tribunal’s view consideration of all the circumstances is required.  The length of relationship is not determinative in itself but is to be considered in the context of other factors relevant to any particular application.  The Tribunal does not consider a long-term relationship, of itself, sufficiently powerful to lead the Tribunal to find that there are compelling reasons for not applying the schedule 3 criteria.”

16. So, the length of relationship was but one of a number of matters to look at to ascertain whether “compelling reasons” had been made out.  Other matters such as:

    a)the financial dependence of the Applicant upon the sponsor; whether the sponsor had become emotionally dependent upon the Applicant because of his age;

    b)the health problems of the sponsor; the fact that the sponsor was a longstanding citizen of Australia who had paid his taxes and had been a fine upstanding citizen making a proper contribution to Australian society; and

    c)the inability of the Applicant to travel overseas with the sponsor, because the terms of the current visa is that the Applicant, if she leaves Australia, cannot come back to Australia, are all matters to add to the mix. 

17. I should add that while the Applicant can travel overseas with the sponsor, they cannot come back to Australia together.

18. The other circumstances are :

    a)the age of the sponsor;

    b)the long delay for the matter to be finalised, the submission that the Applicant and the sponsor are conscious of the age difference between them, are very much in love and want to get on with the rest of their lives rather than face a further delay of 12 to 18 months, perhaps even longer, by having to go through the visa process again;

    c)the fact that the migration agent had misled them as to whether there would be difficulties with the schedule 3 criteria;

    d)the fact that they had paid him over $10,000 and had gotten nothing for their $10,000; and

    e)the character references given, especially one from a Dr Leslie Harvey.

19. So all of those matters were considered by the Tribunal.  The Tribunal also had to consider the visa history of the Applicant, as well.  At paragraph 69, the Tribunal said:-

    “The Tribunal has carefully considered all of the matters raised, and canvassed above. The Tribunal is not satisfied that any of the reasons raised, individually or cumulatively, amount to compelling reasons that give rise to hardship at any time (see extract from Waensila earlier in these Reasons). The Tribunal has taken into account all of the matters raised, including both expressed and implied reasons submitted to be compelling reasons to not apply the Schedule 3 criteria.  The Tribunal has considered all of the matters raised both individually and considered all of the matters together.  The Tribunal is not satisfied that any of the matters raised, whether considered individually or cumulatively, amount to compelling reasons for not applying the Schedule 3 criteria. Accordingly, Mrs Sohi does not meet cl.820.211(2)(d)(ii) of the Act”

20. The matter comes here with one ground only argued, and that is quite properly done. The ground is that

    “1. The Second Respondent has made a decision that is so unreasonable that no other decision maker would have made, and a jurisdictional error has occurred”. 

    Particular

    The Applicant and sponsor had been in a long term married relationship for over five (5) years. It is inconsistent, illogical and irrational that the Second Respondent has not recognised the ‘compelling reasons of a strongly compassionate nature’ as to the length and duration of the Applicant and Sponsor’s relationship, and consequently, by then not waiving the Schedule 3 criteria, which shall lead to hardship to be suffered by both the Applicant and the Sponsor.”

21. Mr Markwell, who appears for the Applicant, has further particularised these matters in his written submission.  He says that the compelling reasons that are of a strongly compassionate nature that were analysed by the AAT but dismissed are as follows:

    a)The sponsor is now 74 years of age, and if the Applicant were required to leave Australia it is doubtful whether a spouse visa would be lodged and processed within 18 months. This would be more likely to be a period of two years, and if that takes two years or slightly longer the sponsor would become 76/77 and that there is an approximate 40 years age gap between the Applicant and the sponsor. Therefore the sponsor has only a limited time of years left in his life.  The submission was that the sponsor may become incapacitated at any stage in his life from hereon, as he is in his mid-70s.

    b)The Applicant and sponsor are in a long-standing relationship which has been in existence for over five years.

    c)The sponsor has outstanding health problems.  He has a problem with his knee, and it makes it very difficult for him to move about easily;  and

    d)The cost factor, though this submission was, in effect, truncated because it was noted by Mr Markwell this was not an aspect that was raised at any time before the Tribunal.

22. Mr Markwell says that, for all those reasons, the decision of the AAT is manifestly unreasonable, and it is so unreasonable that no other decision maker would have made such a decision.

23. The question for me really is whether that last statement is so.  Whilst the decision may be seen as harsh, may be seen as tough, may be seen as somewhat heartless, the question is whether it is unreasonable; that is, is there no logical basis for it. 

24. What the Applicant is really looking at here, is a review of the merits of such a decision.  The fact is that the arguments that this Applicant is putting to the Court now were exactly the same arguments that were put to the Tribunal. 

25. The Tribunal was cognisant of the fact that, if it did not allow the waiver, that the Applicant would have to leave the country and make the application again in India.

26. The Tribunal was cognisant of the fact that last time this took over two years.  It could very well take another two years, as well.  The Tribunal was cognisant that the parties had wasted $10,000.00 before, but was also cognisant of the fact that there was no suggestion that if the Applicant went to India that she would not be financially supported by the sponsor. 

27. The Tribunal was also cognisant of the fact that the sponsor had travelled overseas a number of times, both for business and for personal reasons, without the Applicant, and was able to navigate his way through the sorts of obstacles that may have presented to him. The Tribunal was also cognisant of the fact that there was nothing that stopped the sponsor from going to India with the Applicant when she made such an application for the partner visa. 

28. What the Tribunal did do was say that, in their opinion, these matters that were submitted to them did not amount to “compelling reasons” as to why the waiver should be made.  Now, as I have just pointed out, whilst that decision may be seen as harsh or even heartless, it was not a decision that had no logical basis, nor was it a decision that was not open to the Tribunal.

29. Because it was a decision that was open to the Tribunal, though a decision with which, obviously, the Applicant feels aggrieved and does not agree, that is really not the point.  If it is open to the Tribunal, then there is no jurisdictional error. 

30. As there is no jurisdictional error that has been shown to me, the only course I have is to dismiss the application with costs fixed at $5,800.00. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 June 2017