TANAUMPORN v Minister for Immigration

[2020] FCCA 467

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANAUMPORN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 467

Catchwords:
MIGRATION – Application for judicial review dismissed – failure to comply with visa conditions – no compelling reasons to waive criteria in Schedule 3 to Migration Regulations 1994 – claims relating to sponsor wife’s financial difficulties – claims relating to psychological impact on applicant’s stepdaughter – no actual or apparent bias by Tribunal – no irrelevant considerations taken into account – no unreasonableness in Tribunal’s conclusion.

Legislation:

Migration Regulations 1994 (Cth), subclause 820.211(2)(d)(i) of Schedule 2, clauses 3001, 3003 and 3004 of Schedule 3

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367

Applicant: KRIANGKRI TANAUMPORN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2 of 2018

Judgment of: Judge McNab

Hearing date: 20 February 2020

Date of Last Submission: 20 February 2020

Delivered at: Melbourne

Delivered on: 6 March 2020

REPRESENTATION

Applicant in Person

Counsel for the Respondents: Mr Van Der Westhuizen

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application filed 29 December 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $4000.00

3. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2 of 2018

KRIANGKRI TANAUMPORN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application filed on 29 December 2017, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 November 2017. The Tribunal affirmed the decision of a delegate (‘the delegate’) of the First Respondent dated 24 February 2014 to refuse to grant the Applicant a Partner (subclass 820) visa (‘partner visa’).

Background

1. The Applicant is a male citizen of Thailand who last arrived in Australia on 27 June 2010 as the holder of a Tourist visa (subclass 676) that expired on 27 September 2010.

2. The Applicant did not hold any substantive visa after this date, and the Applicant was an unlawful non-citizen between the date of the expiry of the visa and the application for a Partner (Temporary) (Class UK) visa.

3. The Applicant applied for a partner visa on 5 April 2013, naming his wife as the sponsor (‘the sponsor’).

4. In order to obtain the partner visa, the Applicant needed to satisfy subclause 820.211(2)(d)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) which required that he satisfy criteria in Schedule 3 clauses 3001, 3003 and 3004, unless the decision-maker is satisfied that there are compelling reasons to waive those criteria.

5. Clause 3001 required that the application be lodged within 28 days of the date on which the Applicant last held a substantive visa. The Applicant conceded that he did not satisfy this criterion.

6. The Applicant then sought to establish that there were compelling reasons to waive the criteria under clause 3001. He claimed that he was involved in the care of the sponsor’s daughter (‘the daughter’) and that she had emotional ties to him, and if separated from the Applicant the sponsor and the daughter would suffer psychologically and emotionally.

7. The Applicant also claimed that if the sponsor and daughter were to go offshore with him, the daughter’s ability to attend kindergarten would be affected and would cause her illness. He claimed that the family unit would suffer financial difficulties if he had to apply for the visa offshore.

8. On 24 February 2014 the application was refused by the delegate, the delegate not being satisfied that there were compelling reasons for waiving the criterion under clause 3001.

9. There was an issue with the delegate’s decision and the Applicant was renotified of the decision in respect of the Applicant’s partner visa application in a letter dated 19 January 2016, enclosing the decision record.

10. On 4 February 2016, the Applicant applied to the Tribunal for review of the delegate’s decision.

11. On 29 August 2017, the Applicant's agents provided quite detailed submissions to the Tribunal at Court Book 226-246. These submissions pointed to the:

    a)emotional ties between the sponsor and the sponsor’s daughter;

    b)psychological impacts which might arise in the event of separation;

    c)negative impacts on the Applicant’s stepdaughter, given her age; and

    d)financial dependency of the sponsor’s family on the Applicant.

12. On 4 September 2017, the Applicant attended a hearing with the Tribunal, and on 27 November 2017 the Tribunal made a decision affirming the delegate’s decision.

The Tribunal’s decision

1. The Tribunal found that the Applicant did not satisfy criteria under clause 3001 and then moved to consider whether there were compelling reasons for waiving the criteria under clause 3001.

2. The Tribunal considered the Applicant’s migration history in [17]-[24] of its decision:

   17. The relevant Departmental policy requires consideration in this case because of the review applicant's migration history.

   18. On 22 October 2008, the applicant first arrived in Australia, on a Tourist (subclass 676) visa. This visa was valid unti119 January 2009. The applicant departed Australia on the date of expiry of that visa. A further Tourist (subclass 676) visa was granted enabling the applicant to return to Australia on 27 June 2010, and this visa ceased on 27 September 2010.

   19. On 27 September 2010 the applicant became an unlawful non-citizen. Approximately two years and seven months later the applicant applied for a UK partner (Temporary) and a BS partner (Residence) visa, on 5 April2013, on the grounds of being in spousal relationship with an Australian Permanent Resident.

   20. In 2013 the review applicant was granted a Bridging (subclass 030) visa, and there have been subsequent bridging visas granted to him since that time.

   21. The policy stresses that; ... the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:

   o Fail to comply with their visa conditions or

   o Deliberately manipulate their circumstances to give rise to compelling reasons or

   o Can leave Australia for a partner visa outside Australia.

   22. The sponsor and the applicant's evidence submitted to the Tribunal and discussed below did not dispel a view that the first and third of the above circumstances accurately describe those of the sponsor and the applicant.

   23. Further relevant policy states that the purpose of the Schedule 3 criteria are three-fold; firstly to encourage persons to apply for a further substantive visa before their existing visa ceases to have effect, secondly to discourage persons from overstaying their visas and thirdly to prevent non-citizens from benefiting by remaining in Australia unlawfully.

   24. The applicant described his coming to Australia for the first time in 2008 under a tourist visa. He returned to his native country three months later. He came back to Australia in 2010. He met the sponsor in January 2012. In his oral evidence he said that the parties began living together in May 2012. By August that year they were legally married in Australia.

3. The Tribunal considered whether the Applicant had failed to comply with his visa conditions, or deliberately manipulated the circumstances to give rise to compelling reasons, and/or whether he can leave Australia to apply for a partner visa outside Australia: [21].

4. The Tribunal found that the Applicant’s evidence did not dispel the view that the Applicant had failed to comply with his visa conditions, and that he can leave Australia for a partner visa outside Australia. At [28] the Tribunal referred to questioning the Applicant about his unlawful period in Australia and stated that the Applicant provided little meaningful information.

5. The Tribunal accepted that the Applicant and the sponsor were in a long-term relationship of more than two years and that he was involved in the care of the sponsor’s daughter.

6. The Tribunal also found that the sponsor was the daughter’s primary caregiver, and that the sponsor could continue to work if the Applicant departed Australia.

7. At [30] and [47] the Tribunal also found that if the Applicant returned to Thailand, it would be possible for the sponsor to visit him. The Tribunal considered the separation would be inconvenient on a personal level and financial level, although the Tribunal also found, at [46] and [49], that the circumstances for the sponsor were potentially challenging but not so challenging as to amount to compelling circumstances.

8. The Tribunal considered the sponsor’s health, and accepted the evidence contained in the Clinical Psychologist’s letter dated 15 August 2017 and found that the sponsor was suffering from high levels of stress but not at a level that ‘powerfully drives the Tribunal to a view that the Schedule 3 requirements should be waived’: [45].

9. The Tribunal also found that the Applicant and the sponsor were both aware of the unlawful status of the Applicant for all of the period from 2010 until the application lodgement in 2013.

10. At [38]-[51], the Tribunal considered whether there were compelling reasons as to why the Schedule 3 criteria should be waived in this case. The Tribunal considered the:

    a)negative impact on the daughter if the Applicant was to go offshore; and

    b)capacity for the sponsor to obtain assistance from other sources if the Applicant was required to apply for a partner visa offshore.

    The Tribunal found that while the Applicant may experience ‘a difficult financial set of circumstances’, this did not constitute compelling reasons for not applying the Schedule 2 criteria.

Grounds of review

1. The Applicant’s three grounds of review are detailed and, to some extent, in the form of submissions. In summary, they are that:

   a)first, there has been a breach of natural justice arising from the Tribunal member being subject to actual bias, or the appearance of bias, when he made a decision to affirm the delegate’s decision;

   b)second, that the Court took into account irrelevant considerations and, in particular, took into account whether or not the sponsor’s parents will support the sponsor and her daughter in the event that the Applicant was ordered to make an application offshore; and

   c)third, that the Tribunal’s decision was so unreasonable that no reasonable body could have made the same decision based on the member’s reasoning in the matter. This related to the Tribunal’s findings at [49] that if the Applicant was to return to Thailand, visits from the sponsor might be possible and that while these visits would be ‘a potentially challenging matter to organise for the sponsor’, it was ‘not one so powerful as to be compelling circumstances’. The Applicant says that it was unreasonable for the Tribunal to consider that it would be possible for the sponsor (a single mother with a limited income) to leave Australia and organise a trip to visit her husband in Thailand.

Consideration

1. For the purpose of the hearing the Applicant relied on two Affidavits, affirmed 29 December 2017 and 14 February 2020 respectively.

   a)The Affidavit of 29 December 2017 purported to give an explanation as to why he did not respond to the Tribunal member’s proposition that a visitor visa is for three months, not several years. He stated he was neither required to, nor asked to, respond to the Tribunal member’s proposition.

   b)The Affidavit of 14 February 2020 provided evidence about the sponsor’s financial circumstances, loans and current income breakdown. Much of the material was already before the Tribunal. It seems that the only evidence that was not before the Tribunal at the time of the decision was a breakdown of the sponsor’s current income. In my view, the Tribunal took account of the substance of the matters which are set out in the Affidavit affirmed on 14 February 2020

2. In relation to the first ground, the Applicant was concerned with [28] of the Tribunal decision which provides:

   When questioned in the hearing about his unlawful period the applicant provided little meaningful information. He said that he had been made aware of his unlawful status by a lawyer. He stated in the hearing that he did not understand how the process worked. There was little response from the applicant to the proposition put in the hearing that the Australian Government took a ‘dim view’ of persons overstaying their visas. Little reaction was made to the proposition put that a visitor visa is for three months not several years. I find this was an effort to avoid discussing a matter of common knowledge - that one cannot extend one’s stay in Australia for a long period without permission.

3. In my view, the passage above evinces no basis for a claim of actual or apparent bias on the part of the Tribunal member. The Tribunal was considering a matter of policy which it was required to do. In particular, it considered the Applicant’s attitude to overstaying the visa and whether he had deliberately done this. That consideration is set out at [18]-[24] of the decision. Ground 1 must fail.

4. In relation to ground 2, the Tribunal at [46] made findings as to how the sponsor may support herself in the Applicant’s absence. The Tribunal stated:

   I consider alternatives where others may be able to support the sponsor with increased time and attention. I note that the sponsor is involved in a church. Conceivably community assistance of this kind might be possible, although the sponsor had not explored this matter. A reduced financial position that might occur if the applicant left Australia for a period is considered. A personal loan and other financial and living costs are given regard to. Yet the sponsor’s parents overseas own property and the logical possibility of support from family or the community was not discussed in detail by the parties. I am left with an impression of a difficult financial set of circumstances but not compelling ones.

5. The possibility of outside or external support was a relevant consideration for the Tribunal. The Tribunal was aware that there was no guarantee that there would be such support. In my view, the Applicant has not demonstrated that the Tribunal took into account irrelevant considerations in considering the sponsor’s capacity to support herself in the Applicant’s absence.

6. The third ground relates to the finding at [49] of the decision, that visits by the sponsor may be possible if the Applicant was to be removed from Australia. The Tribunal found that the prospect of that was:

   […]a potentially challenging matter to organise for the sponsor, but not one so powerful as to be compelling circumstances.

7. There is no failure on the part of the Tribunal to consider the Applicant’s claims when it reached its conclusion in relation to whether or not compelling circumstances existed to warrant waiving the requirements of criteria under clause 3001.

8. The Tribunal recognised that the sponsor’s financial position may affect her ability to travel overseas to visit the Applicant, but it was open for the Tribunal to have considered that such visits might, nonetheless, be possible and that the difficulties faced by the sponsor in managing to pay for and arrange such visits were not so powerful as to be compelling circumstances. That finding was reasonably open to the Tribunal. It is certainly not a decision which is one at which no rational or logical decision maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at 130.

9. For these reasons, the Application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  6 March 2020