Soni v Minister for Immigration

[2019] FCCA 3253

FEDERAL CIRCUIT COURT OF AUSTRALIA

SONI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3253

Catchwords:
MIGRATION – Partner visa – delegate not satisfied applicant was spouse of sponsor – not satisfied compelling reasons to waive other criteria – evidence before Tribunal that applicant and ‘spouse’ not living together or speaking to one another – factors contra-indicating relationship – grounds without merit – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 359A, 360, 360A, 474, 476

Migration Regulations 1994 (Cth), regs.1.15A, 4.21, 801.211, 820.211, 820.221

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86

FCR 547

Minister v Immigration and Citizenship v Chamnam You [2008] FCA 241

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

(2006) 228 CLR 152

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

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

Applicant: REKHABEN NAVINCHANDRA SONI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 473 of 2017

Judgment of: Judge A Kelly

Hearing date: 11 November 2019

Date of Last Submission: 11 November 2019

Delivered at: Melbourne

Delivered on: 14 November 2019

REPRESENTATION

The Applicant: In Person

Solicitor-Advocate for the Respondents: Ms Ward

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application dated 9 March 2017 be dismissed.

3. The applicant pay the costs of the first respondent fixed at $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 473 of 2017

REKHABEN NAVINCHANDRA SONI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 9 March 2017, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 15 February 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant her a Partner visa pursuant to s 65 of the Migration Act 1958 (Act).

2. The applicant, a female citizen of India aged 45 years, first came to Australia on 16 May 2007 holding a Student (subclass 573) visa.  This, her first, visa was valid until 8 June 2007.  On that date, the applicant applied for another Student (subclass 573) visa which was valid until 15 March 2011. 

3. On 15 March 2011, the applicant applied for a Temporary Skilled Graduate (subclass 485) visa.  On 15 March 2012, a delegate of the Minister refused the application.

4. On 11 April 2012, the applicant applied to the then Migration Review Tribunal (MRT) for a review of the delegate’s decision.  The MRT found that it did not have jurisdiction.  

5. On 3 October 2013, the applicant applied for a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa on the basis of her relationship with James Ramsey (sponsor). 

6. By letter dated 30 September 2014, the Department invited the applicant to comment on information which suggested that her application did not satisfy the criteria in Sch 3 of the Migration Regulations 1994 (Cth) (Regulations).  The applicant and her sponsor were invited to submit any claims that they may have wanted the Department to consider. The applicant’s migration agent duly provided the Department with written submissions and a number of supporting documents.

7. By letter dated 19 April 2016, the Department requested that the applicant provide more information. The letter noted that although the applicant did not hold a substantive visa at the time of lodging her application for a Partner visa, the Regulations allowed for the requirements of Sch 3 to be waived where there were compelling reasons for not applying those criteria. The letter invited the applicant to provide the Department with information providing further evidence of her relationship with her sponsor.

8. On 27 April 2016, the applicant’s migration agent provided the Department with a number of supporting documents, including a statutory declaration deposed by the applicant’s cousin who attested to the spousal relationship of the parties. 

Delegate’s decision

1. On 17 May 2016, a delegate of the Minister refused to grant the visa and gave reasons for so doing. The delegate found that the applicant did not satisfy cl 820.211 of the Regulations in that, relevantly, she was not the spouse of an Australian citizen and had not applied within 28 days of the last day on which she had held a substantive visa. The delegate further found the following:

   a)the applicant and sponsor had not pooled their financial resources in any way, had any significant joint assets or liabilities, made any significant joint purchases or shared any day-to-day financial responsibilities;

   b)the applicant and sponsor had not established a joint household with shared responsibilities;

   c)the applicant and sponsor did not present themselves to family and friends as being in a committed partner relationship, and were not regarded by others as such; and

   d)the applicant and sponsor did not see themselves as being in a long-term relationship, did not draw emotional support and companionship from each other or have a commitment to a shared life together.

2. On 3 June 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.  On 6 January 2017, the Tribunal invited the applicant to attend a hearing on 15 February 2017 to give evidence and present arguments relating to the issues arising on the decision under review. 

3. On 15 February 2017, the applicant appeared before the Tribunal with the assistance of her migration agent and a Hindi interpreter. 

Tribunal’s decision

1. On 16 February 2017, the Tribunal notified the applicant of its decision.  In a written statement of reasons (Reasons) dated 15 February 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a Partner visa. 

2. The Tribunal outlined the relevant law to determine whether the applicant was a ‘spouse’ of the sponsor as defined in s 5F of the Act at [4]-[8] and found that:

   a)the applicant and sponsor were validly married in September 2013: [9];

   b)the applicant and sponsor had arguments which led to them living apart for the past three to four months and had not contacted each other for the past one or two months.  Although the applicant had said that she believed that situation could change in the future, the Tribunal was not satisfied that the applicant’s desire for the relationship to resume would actually occur: [10];

   c)there was little documentary evidence provided to the Tribunal since the delegate had refused the applicant’s visa indicating that she shared finances or legal obligations with the sponsor: [11];

   d)was not satisfied that the applicant and sponsor represented themselves as being married to each other, or that their friends believed the relationship to be genuine: [12]; and

   e)was not satisfied that there was a mutual commitment to a long term relationship which would provide each other with companionship and draw emotional support from each other: [13].

3. The Tribunal was not satisfied that the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that their relationship was genuine or continuing. For those reasons, it was not satisfied that the applicant was the spouse of her sponsor: [14].

4. As the applicant did not meet the criteria in cl 820.221, the Tribunal proceeded to consider whether she met cl 820.211(d)(ii) by providing compelling reasons for not applying Sch 3 of the Regulations. The Tribunal noted that ‘compelling reasons’ were not defined for these purposes, but that they should be sufficiently convincing to move it to exercise its discretion and that the circumstances must be sufficiently powerful to lead it to make a finding in favour of waiving the criteria: [23]. The Tribunal found that:

   a)the applicant’s emotional support she provided the sponsor after the death of his brother was not necessarily a “normal indicia of marriage”.  There was nothing exceptional about it, and such support could be offered from overseas if the applicant was to live outside of Australia.  As the applicant and sponsor were not in a relationship, the provision of emotional support in the past was not a compelling reason to waive the criteria: [25];

   b)no weight was attached to a psychological assessment of the sponsor that had been conducted in January 2014 (four months after the parties’ marriage) because the psychologist was either unaware of that marriage or the sponsor did not consider himself to be in a committed relationship: [26];

   c)even if there was a genuine and long term relationship between the applicant and sponsor before it broke down, this would not necessarily constitute a compelling reason for the waiver: [27];

   d)the applicant’s presence in Australia would not be required for the sponsor to continue his treatment for his drug addiction and health concerns, and there was nothing to indicate these had worsened since their relationship had broken down: [28];

   e)although the applicant may have provided the sponsor with some help in his studies, he had already completed them.  There was also little documentary evidence that the applicant had provided financial assistance to the sponsor, or that he was financially reliant on her: [29];

   f)at the Tribunal hearing, the applicant did not refer to any of the matters from her written submission to the delegate and her lack of recall suggested that she did not have such an important role in the sponsor’s life as she claimed: [30];

   g)even if the Tribunal did accept all of the applicant’s claims, the compelling circumstances for the waiver had ceased because the relationship had ended: [31];

   h)contrary to the applicant’s claim that she was misled by another person who helped with her visa application, the applicant would not have made an application without any knowledge of the matter because she would have had to complete and sign the forms and pay the fee applicable: [32].

5. The Tribunal was not satisfied that there were compelling reasons for not applying the Sch 3 criteria and accordingly, found that she did not meet the criterion in cl 820.211(2)(ii). The Tribunal affirmed the decision not to grant the visa.

Procedural history

1. On 9 March 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which she exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.

2. By a Response filed on 24 March 2017, the Minister opposed the application on the stated bases that it did not contain any particulars or legal ground of review, and that it did not establish any jurisdictional error in the Tribunal’s decision.

3. On 13 November 2017, orders were made, by consent, listing the matter for final hearing.  Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions, however, those opportunities were not taken.

4. On 8 November 2017, the Minster filed written submissions which were responsive to the grounds appearing in the application.

Applicable principles

1. If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review.  A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2]  In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]  Whether it should do so is a separate issue.

   [1] Act, s 474(2).

   [2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [3] Act, s 476(2).

2. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

3. The term spouse is defined by s 5F which relevantly provides that for the purposes of the Act, a person is the spouse of another person if, under sub-s 5F(2), the two persons are in a married relationship.[5] Sub-section 5F(2) provides:

   [5]             Act, sub-s 5F(1). 

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they:

   (i)    live together; or

   (ii) do not live separately and apart on a permanent basis.

4. The Regulations may make provision in relation to the determination of whether one or more of the conditions in pars 5F(2)(a)-(d) exist and may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.[6]

   [6]             Act, sub-s 5F(3).

5. Regulation 1.15A, which was made under s 5F(3) of the Act, reads:

   (1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)any joint ownership of real estate or other major assets; and

   (ii)any joint liabilities; and

   (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)the basis of any sharing of day-to-day household expenses; and

   (b)the nature of the household, including

   (i)any joint responsibility for the care and support of children; and

   (ii)the living arrangements of the persons; and

   (iii)any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)whether the persons represent themselves to other people as being married to each other; and

   (ii)the opinion of the persons' friends and acquaintances about the nature of the relationship; and

   (iii)any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons' commitment to each other, including:

   (i)the duration of the relationship; and

   (ii)the length of time during which the persons have lived together; and

   (iii)the degree of companionship and emotional support that the persons draw from each other; and

   (iv)whether the persons see the relationship as a long-term one.

   (4). . .

   Textually, the structure of reg 1.15A(3) is arranged by reference to the four principal matters prescribed by sub-par (a)-(d) and the fifteen specific matters enumerated in the Roman numerals beneath them.

6. The requirements of each of sub-s 5F(3) and reg 1.15A(2)-(3) are expressed cumulatively and in imperative terms. For the purposes of satisfying the criterion in sub-cl 801.211(2) of Sch 2 that an applicant falls within the definition of spouse in s 5F, the determination whether parties are in a married relationship requires that the decision-maker consider all of the circumstances of the relationship, including the matters set out in sub-reg 1.15A(3).

Consideration

1. The applicant was self-represented before me and assisted by an interpreter.   As she was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and application for review. 

2. The application for review contained 3 grounds of review.

Ground 1

1. Ground 1 reads:

   Jurisdictional error

2. This ground of review is meaningless without further particularisation and does not disclose any jurisdictional error on the part of the Tribunal.[7]

   [7]            SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, [21].

3. Ground 1 is rejected.

Ground 2

1. Ground 2 reads:

   Error in interpretation of legislation

2. Again, Ground 2 provides no particulars as to any error by the Tribunal in interpreting legislation or the nature of that error.  In any event, the Tribunal correctly set out the relevant legislation for this proceeding under the heading “Relevant law” with respect to the definition of “Spouse” in s 5F of the Act, the required factors for the assessment of Spouse in reg 1.15A(3) and the Sch 3 criteria: [4]-[8].

3. The Tribunal then applied the law to the applicant’s circumstances.  First, it found that the applicant was not the spouse of the sponsor: [10]-[14]. Secondly, it found that that the applicant did not meet the Sch 3 criteria: [16]-[20]. Thirdly, it found that there were no compelling reasons to waive the Sch 3 criteria: [22]-[33].

4. Each of those findings were open to the Tribunal on the material before it.[8]  Ground 2 is dismissed.

   [8]            Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

Ground 3

1. Ground 3 reads:

   Natural Justice, I believe that I was not given fair hearing.  My spouse is suffering from drug problem, depression and needs my regular support.

2. To the extent that the applicant complains of a breach of procedural fairness, the Tribunal complied with its procedural fairness obligations under Pt 5, Div 5 of the Act. The applicant was invited to attend a hearing before the Tribunal in accordance with ss 360 and 360A of the Act to give evidence and present arguments in relation to the issues arising on the decision under review. The applicant took those opportunities and participated at the hearing with the assistance of an interpreter.[9]  The Tribunal did not limit its consideration of the applicant’s circumstances to the time of the application, but rather considered the applicant’s claims and evidence up until the time of making its decision.[10] The Tribunal clearly discussed the applicant’s and sponsor’s circumstances with the applicant at the hearing: [10]. Further, the Tribunal considered the evidence put forward at the hearing as well as that put before the delegate; including with respect to the sponsor’s drug problem, mental health issues and the support provided by the applicant: [13], [24], [26], [28].

   [9] The notice period complied with reg 4.21(4) of the Regulations.

   [10]           Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32.

1. I do not accept that the Tribunal failed to consider any evidence or claims made by the applicant.

2. Further, the applicant was on notice from the delegate’s decision that the questions of whether she was the spouse of the sponsor and whether there were compelling reasons for waiving the Sch 3 criteria were the determinative issues on the review.[11]  Otherwise, no obligations arose under s 359A of the Act since all of the evidence considered by the Tribunal was contained within the delegate’s decision record (provided to the Tribunal by the applicant),[12] was given orally by the applicant to the Tribunal or was provided in writing to the delegate and therefore fell within the exceptions under s 359A(4)(b) and s 359A(4)(ba) of the Act.

   [11]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [33]-[35].

   [12] Minister v Immigration and Citizenship v Chamnam You [2008] FCA 241, approved (in obiter) by the Full Court in Minister for Immigration and Citizenship v Brar [2012] FCAFC 30, [74].

3. Ground 3 should be dismissed.

Conclusion

1. I do not identify any other basis on which the decision may be impugned for jurisdictional error.  Before me, the applicant stated that she had “nothing much to say” and that she was not satisfied with the Tribunal’s decision, which was why she sought a review by this court.  Those submissions did not identify a plausible ground of judicial review.

2. For the reasons above, I have concluded that the application must be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date: 14 November 2019