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

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 9 March 2017 be dismissed.
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

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).
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.
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.
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.
On 3 October 2013, the applicant applied for a Partner (Temporary) (Class UK) Subclass 820…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3253
Decision Date: 14 November 2019

CaseChat Overview and Summary

The applicant, Soni, sought judicial review of a decision by the Minister for Immigration to refuse a partner visa. The delegate of the Minister had not been satisfied that the applicant was the spouse of the sponsor, nor that there were compelling reasons to waive other visa criteria. The Administrative Appeals Tribunal had affirmed this decision, finding that the evidence before it indicated the applicant and the purported spouse were not living together or speaking to one another, and that various factors contra-indicated the genuineness of their relationship.

The primary legal issue before the Federal Circuit Court was whether the Tribunal had erred in law in its assessment of the evidence concerning the applicant's relationship with the sponsor and the existence of compelling reasons to waive the usual criteria for a partner visa. Specifically, the court considered whether the Tribunal had properly applied the relevant migration legislation and case law in reaching its conclusion that the grounds for the application were without merit.

Judge A Kelly found that the Tribunal had not erred in law. The Tribunal had considered all the evidence before it, including evidence that pointed away from a genuine and continuing relationship, and had made findings of fact based on that evidence. The Tribunal's conclusion that there were no compelling reasons to waive the criteria was a finding of fact open to it on the evidence. Therefore, the application for judicial review was dismissed.

Orders