Temponi v Minister for Home Affairs

[2018] FCCA 3040

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEMPONI v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3040

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (class UK) visa – whether the Tribunal considered the applicant’s evidence – whether the Tribunal failed to consider integers of the applicant’s claims – whether the Tribunal gave cogent reasons for its findings – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.820.211

Applicant: LAIAIETE FERREIRA TEMPONI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1392 of 2018

Judgment of: Judge Street

Hearing date: 25 October 2018

Date of Last Submission: 25 October 2018

Delivered at: Sydney

Delivered on: 25 October 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Sangha
Mills Oakley

ORDERS

1. The application is dismissed.

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

DATE OF ORDER: 25 October 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1392 of 2018

LAIAIETE FERREIRA TEMPONI

Applicant

And

MINISTER FOR HOME 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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 April 2018 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (class UK) visa.

2. The applicant is a citizen of Italy and entered Australia on 2 March 2013 on a Visitor visa which ceased on 2 June 2013. From 3 June 2013 until 28 July 2016, the applicant remained unlawfully in Australia. The current visa application was lodged on 29 July 2016.

3. On 11 November 2016, the delegate refused to grant the applicant the Partner (Temporary) (class UK) visa. The delegate found the applicant failed to meet the criteria under Schedule 3 relating to cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. The applicant applied for review on 29 November 2016. The applicant was invited to and attended a hearing on 4 April 2018 to give evidence and present arguments. The applicant was represented by his migration agent on that occasion and the Tribunal heard evidence from three witnesses in addition to the applicant.

5. The Tribunal identified the criteria that the applicant had to meet for the grant of the Partner (Temporary) (class UK) visa. The Tribunal identified the background to the application. The Tribunal found that the application was not made within 28 days of the relevant day and that, accordingly, the applicant failed to meet the criteria 3001. It was in those circumstances that Tribunal turned to consider whether there were compelling reasons for not applying the Schedule 3 criteria.

6. The Tribunal took into account the information and evidence given in relation to the relationship between the applicant and the sponsor and the genuineness of that relationship. The Tribunal was not satisfied that the longevity of the relationship was a compelling reason that the Tribunal should not apply the Schedule 3 criteria. The Tribunal expressly referred to the physical and psychological health of the sponsor. The Tribunal referred to the sponsor having a cleaning business and although not cleaning herself, running that small business. The Tribunal accepted that the sponsor suffers from the conditions claimed but did not accept that the sponsor would be unable to manage during a temporary absence of the applicant. The Tribunal in that regard referred to the applicant continuing to run her small business.

7. The Tribunal was not satisfied that the sponsor would be unable to obtain assistance from her children. The Tribunal identified that she has three adult children living in Australia. The Tribunal noted that the sons were strong and healthy and the Tribunal was not satisfied that the challenges the sponsor would face during the absence of the applicant in circumstances where she had three adult children in Australia constitute compelling reasons for not applying the Schedule 3 criteria.

8. The Tribunal referred to the applicant’s evidence concerning the emotional relationship with one of the sponsors’ sons but was not satisfied that this constitutes compelling reasons for not applying the Schedule 3 criteria.

9. The Tribunal also referred to the applicant suffering from depression and anxiety. The Tribunal was not satisfied after considering the whole of the evidence that there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found the applicant failed to meet the criteria in cl 820.211(2)(d)(ii) and affirmed the decision under review.

10. These proceedings were commenced on 17 May 2018. On 7 June 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

11. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the explanation given by the Court.

12. From the bar table, the applicant referred to his wife now having diabetes and blood pressure problems. The reference to diabetes and blood pressure is not material that was before the Tribunal. This Court cannot make fresh findings of fact in relation to the applicant’s application. Material that was not before the Tribunal cannot make out any relevant jurisdictional error. The applicant referred to the sponsor’s three children and disagreed with the extent to which they could assist the sponsor.

13. The applicant invited the Court to review the material and decide the matter on compassionate grounds, taking into account the difficulties faced by the family. The Court has no power to determine the matter on compassionate grounds. The Court has no power to determine the matter on a discretionary basis. The Court has no power to make fresh findings of fact. The Court’s powers are limited to considering whether or not the Tribunal exceeded its statutory powers and whether the Tribunal complied with the obligations of procedural fairness.

14. In substance the applicant’s submissions from the bar table invite the Court to engage in merits review. This Court does have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The AAT wrongly concluded the child can look after her.

   2. The AAT Tribunal failures to consider the physical and psychological assistance and medical evidences prescribed.

   Paragraph 19 of AAT decision: “Tribunal accepted that this sponsor suffers from the conditions as claimed and accepts that this applicant assists the sponsor”

   Paragraph 20 of AAT decision: “The Tribunal accepts that the applicant’s absence may present the parties some challenges”

   Paragraph 22 of the AAT decision: “Other medical opinion is that the applicant suffers from depression and anxiety.”

   3. The AAT wrongly concluded or made assumption that the sponsor had raised the three kids and is able to manage her day-to-day matters.

   Paragraph 19 of AAT decision: “Prior to that time the sponsor managed her day-to-day matters including raising three children”

   4. If the applicant departs, they can talk and communicate but he will not be able to provide the emotional and psychological assistance required.

   Paragraph 20 of the AAT decision: “the Tribunal accepts that the applicant’s absence may present parties some challenges, but it encourages them to support each other via this many available communication tools.

Ground 1

1. In relation to ground 1, the disagreement in relation to the ability of the three adult children to assist the sponsor does not identify any relevant error by the Tribunal. It was open to the Tribunal to take into account that there were three adult children living in Australia. It was open to the Tribunal to take into account that the sons were strong and healthy. It was open to the Tribunal to take into account that there was no evidence that the sponsor’s sons cannot offer assistance to the sponsor temporarily while the applicant would be offshore.

2. The adverse finding taking into account the sponsor’s ability to obtain help from health professionals, family and friends cannot be said to illogical or irrational or to lack an evident and intelligible justification. No jurisdictional error is made out by reason of the applicant’s disagreement with the ability of the three children of the sponsor to assist her. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant alleges that there was a failure to consider the physical and psychological assistance and medical evidence presented. The Tribunal’s reasons, to the contrary of that contention, reflect a comprehensive review of the applicant’s submissions and evidence and as summarised in the reasons above, took into account the sponsor’s running of a business, as well as the limited extent to which she does cleaning work and that she only does light work and expressly referred to accepting that the sponsor suffers from the conditions claimed and accepted that the applicant assists the sponsor.

2. There is no failure to take into account a relevant consideration as advanced in ground 2. The adverse findings by the Tribunal in relation to the want of compelling reasons cannot be said to be illogical or irrational or to lack and evidence and intelligible justification. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this in substance reflects a disagreement with the Tribunal’s finding that the sponsor will not be unable to manage during the temporary absence of the applicant. The adverse finding by the Tribunal in that regard, taking into account the Tribunal’s findings in relation to the business run by the sponsor, and her ability to do light work, was open to the Tribunal notwithstanding the conditions identified and accepted by the Tribunal from which the sponsor suffers.

2. Further, as referred to above, it was open to the Tribunal to take into account the three adult children living in Australia and finding that the sponsor will be able to seek help from health professionals, her family and friends during the temporary absence of the applicant. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, this refers to the impact on the sponsor, as well as the applicant, of the separation. The Tribunal expressly took into account the impact of separation both on the applicant and the sponsor. No jurisdictional error is made out by ground 4.

2. As the Court explained earlier, whilst the Court may well understand the difficulties that the family may face and understands the impact on the applicant and the sponsor, the Court has no power to assist unless is it satisfied that there is a relevant error. The Court cannot grant relief on compassionate grounds because it does not have the power to do so. Whilst the circumstances are unfortunate, they are ones in part of the applicant’s own making by reason of having remained unlawfully in Australia for over three years.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 November 2018