SZUPD v Minister for Immigration

[2020] FCCA 2274

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2274

Catchwords:
MIGRATION – Administrative Appeals Tribunal – oral application for an adjournment – whether an adjournment in the interests of the administration of justice – oral application for an adjournment refused – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal misapplied the relevant law – whether the Tribunal did not take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), cl 820.220

Applicant: SZUPD

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2483 of 2019

Judgment of: Judge Street

Hearing date: 18 August 2020

Date of Last Submission: 18 August 2020

Delivered at: Sydney

Delivered on: 18 August 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms Q Ren via Microsoft Teams
Australian Government Solicitor

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

Date of order: 18 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2483 of 2019

SZUPD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 August 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa (“Partner visa”).

2. The applicant was found to be a citizen of Nepal and her claims were assessed against that country. On 12 March 2013, the applicant first arrived in Australia on a Subclass 456 Business (Short Stay) visa which ceased on 23 April 2013.

3. On 18 April 2013, the applicant lodged an application for a Protection visa which was refused on 11 November 2013. That refusal was affirmed by the Refugee Review Tribunal on 3 June 2014. The applicant unsuccessfully pursued an application for judicial review.

4. On 5 December 2014, the applicant applied for the Partner visa the subject of these proceedings on the basis of her relationship with a sponsor who died on 11 July 2019.

5. On 22 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Partner visa.

6. On 4 October 2016, the applicant applied for review of the Delegate’s decision. On 21 September 2017, a differently-constituted Tribunal affirmed the Delegate’s decision. On 17 October 2017, the applicant applied for judicial review. On 12 November 2018, a Judge of this Court remitted the matter to the Tribunal for redetermination.

7. By letter dated 29 November 2018, the Tribunal currently constituted informed the applicant that it was reconsidering her review application. The applicant, through her migration representative, provided written submissions to the Tribunal, medical records in relation to the sponsor and a letter of support from her pastor. The applicant’s sponsor passed away on 11 July 2019.

8. By letter dated 15 July 2019, the Tribunal invited the applicant to attend a hearing on 21 August 2019. By letter dated 7 August 2019, the applicant was invited by the Tribunal to provide further information. On 14 August 2019, the applicant provided written submissions to the Tribunal. On 21 August 2019, the applicant attended a hearing before the Tribunal to give evidence and present arguments.

9. At that hearing, the applicant gave evidence that her husband and her church were the family with which she had personal ties. The applicant gave evidence in relation to her attendance each week at the church, as well as attending other gatherings. The Tribunal identified that the applicant was not able to provide any other information of any other activities that she participates in with the church or any other cultural or personal groups. The Tribunal identified that the applicant did not provide any further information as to any close ties she had with any cultural group. The pastor also gave evidence to the Tribunal in relation to the applicant’s role at the church and that the church used funds to repay the applicant’s debt to the Commonwealth.

10. The Tribunal in its reasons identified the background to the review application, including the applicant’s migration history.

11. The Tribunal identified that the applicant needed to meet the requirements, relevantly, of cl 820.221(2)(c) of the Migration Regulations 1994 (Cth) (“the Regulations”) and referred to the applicant’s written submissions in support of meeting that criteria.

12. The Tribunal found that the applicant met the requirements of cls 820.221(2)(a) and 820.221(2)(b) of the Regulations. The Tribunal also found that the applicant would meet the criteria in cl 820.221(2)(d) of the Regulations.

13. The Tribunal identified the criteria required under cl 820.221(2)(c) of the Regulations that requires the applicant to have developed close business, cultural or personal ties in Australia.

14. The Tribunal expressly referred to the applicant’s claim of a close relationship with her church community.

15. The Tribunal found that the applicant had not worked since 2015 and that there is little information which would indicate that she has developed any business ties in Australia. The Tribunal was not satisfied that the applicant has developed close business ties in Australia.

16. The Tribunal identified that the applicant’s mother, son and adopted daughter continue to live in Nepal.

17. The Tribunal referred to the applicant’s regular attendance at the church and her evidence about having two close friends from the church and two close friends who did not attend the church. The Tribunal found that the applicant provided little information as to what, if any, activities they participate in or any dependence those people have upon the applicant or any detriment they would face if she were required to depart Australia. The Tribunal did not accept that the applicant’s relationship with them can be considered as close personal ties.

18. The Tribunal referred to the occasional continuing contact with the friends of the sponsor and that there is no information that indicates the applicant has developed any close ties with the friends of the sponsor.

19. The Tribunal referred to the applicant’s claims in relation to close personal ties and involvement in the church. The Tribunal found that the activities of the church did not mean the applicant has close cultural ties in Australia.

20. The Tribunal did not accept that any of the relationships that the applicant had established with the Nepalese community in Australia can be considered as close personal ties.

21. The Tribunal identified that none of the people within Australia were dependent upon the applicant for any reason and that she does not have any close family members who reside in Australia.

22. The Tribunal did not accept that the applicant’s subjective belief that she may face persecution in Nepal due to her Christian faith means that she has developed close business, cultural and personal ties in Australia.

23. The Tribunal was not satisfied that the applicant’s relationship with the church and church community meant that she had developed close business, cultural and personal ties in Australia. The Tribunal found that the applicant did not meet the criteria in cl 820.220(2)(c) of the Regulations.

24. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 26 September 2019. On 17 October 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant provided written submissions yesterday but no other documents.

2. At the commencement of the hearing today, the applicant sought an adjournment which was not consented to by the first respondent. The applicant identified that she had recently applied for Legal Aid and was hoping that they make a decision to assist her. The applicant also referred to being unable to pay for a solicitor.

3. These proceedings were commenced on 26 September 2019 and the applicant has had ample opportunity to obtain legal representation and to apply for Legal Aid. The belated application for Legal Aid, when the proceedings were fixed for hearing on 17 October 2019, is not a proper basis to justify an adjournment of the proceeding.

4. The Court is not satisfied that an adjournment was warranted in the interests of the administration of justice. The Court has also, in that regard, taken into account the want of merit in the substantive application by the applicant. It is for these reasons that the Court refused the oral application for an adjournment.

5. After the adjournment application, the Court explained to the applicant the nature of the hearing and the applicant confirmed that she understood the nature of the hearing as explained by the Court.

6. The applicant had provided with the written submissions a recent letter from her pastor going to her claims. The letter from the pastor is not capable of establishing judicial error by the Tribunal and it was marked MFI-1. This is because the letter was not relevant to the issues before the Court in the application for judicial review.

7. The applicant orally asked that the Court give her justice and said that her church is her family. The applicant’s oral submissions, in substance, invite impermissible merits review. This Court has no power to determine the matter on discretionary or compassionate grounds. Accordingly, nothing said by the applicant orally identified any jurisdictional error.

Ground in the application

1. The ground in the application is as follows:

   1. The Tribunal was wrong to define too strictly the meaning of having very close personal ties in Australia. They expected me to who that am very close to my Australian friends in church, who I see as my family.

   Particulars

   The Tribunal was wrong because it found that to be close that:

   - I needed to have dependency

   - the other person needed to suffer harm if I were required to leave Australia

   - friendship of itself without biological connection was not enough

   - my view that church members were like my family was not enough because I had no other family in Australia.

2. The applicant’s written submissions expanded on the contention that the Tribunal had adopted an erroneous understanding or meaning of the requirement of “close personal ties”. There is no definition or mandatory consideration in relation to the meaning of close business, cultural or personal ties in the Regulations. Accordingly, the Tribunal is not constrained beyond the ordinary and natural meaning in assessing whether the applicant’s close personal ties in Australia could be considered to meet the requirements of the provision. The Tribunal’s finding of no personal ties was a finding of fact open to the Tribunal.

3. The Court accepts the first respondent’s submission that the Tribunal’s reasons are consistent with adopting an interpretation of the meaning of close personal ties that is its ordinary and natural meaning.

4. It was a relevant and permissible consideration by the Tribunal to take into account the absence of any person dependent on the applicant or the applicant not having actual family in Australia. Taking into account those considerations does not support the Tribunal giving an erroneous meaning to the phrase “close personal ties”.

5. It is apparent that the Tribunal took into account the applicant’s involvement with her church and her normal or daily activities and the evidence that was presented. The applicant was not able to provide any other information of any other activities she participates in with the church or any other cultural or personal groups. The applicant did not provide any further information as to any close ties she had with any cultural group. The Tribunal found that the applicant provided little information as to what if any activities she participates in with, or any dependence, her two close friends from the church and two close friends not from the church, have upon the applicant or any detriment they would face if she were required to depart Australia.

6. The Tribunal did not identify that the applicant had to have a dependent or that the applicant needed to suffer harm in order to meet the criteria in relation to cl 820.221(2)(c) of the Regulations. The Tribunal was referring to the applicant’s submission in relation to the circumstances of an alleged fear to suffer harm if returned to Nepal. It was in those circumstances a relevant factor for the Tribunal to take into account.

7. Nor did the Tribunal make a finding that the applicant had to have a biological connection to meet the requirements of the phrase “close personal ties”. The location of the applicant’s actual family was a relevant consideration for the Tribunal to take into account.

8. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. The adverse finding by the Tribunal cannot be said to be illogical or irrational or to lack an evident and intelligible justification.

9. The lack of evidence from the applicant about the extent of her ties with her friends and her church community was a proper basis for the Tribunal to make an adverse finding in relation to the requirements of cl 820.221(2)(c) of the Regulations. The Tribunal’s finding that the degree of support to the applicant from her church community did not meet the requirements of close personal ties was an adverse factual finding that was open to the Tribunal for the reasons it gave.

10. The Tribunal did not adopt an erroneous or narrow meaning of the phrase “close personal ties” in cl 820.221(2)(c) of the Regulations. There are no jurisdictional errors made out by ground one.

11. Accordingly, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 12 February 2021