Thai v Minister for Immigration

[2013] FCCA 1356

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1356

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal decision – applicant not attending Court – Tribunal finding that applicant not in genuine spousal relationship – Tribunal’s finding based on evidence from putative spouse – application dismissed.

Legislation:  

Migration Act 1958 (Cth), s.359A
Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(e), 701

Applicant: BA BEN THAI

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 372 of 2013

Judgment of: Judge Burchardt

Hearing date: 5 August 2013

Date of Last Submission: 5 August 2013

Delivered at: Melbourne

Delivered on: 5 August 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Ms Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.

3. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 372 of 2013

BA BEN THAI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. By an application filed on 22 March 2013, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), dated 21 February 2013.  The Tribunal affirmed a decision not to grant the applicant a Partner (Temporary)(Class UK) visa, nor a Partner (Residence)(Class BS) visa.  The Tribunal found, on the basis of the evidence before it, that the applicant had never been in a relationship with the sponsor and they had never had a mutual commitment to one another.

2. The sole ground of the application is that “the tribunal should have taken into account the applicant’s letter which clearly stated that the parties were in a genuine relationship and that they were having relationship issues when the wife was interviewed.  The wife’s views did not truly reflect the state of the relationship and the tribunal should have adjourned the proceedings to give the applicant an opportunity to repair their relationship.”

3. The written submissions filed by the applicant, in effect, repeat that assertion in slightly expanded form.

4. Paragraph 7 and following of the applicant’s written submissions read as follows:

   “The applicant wrote to the Tribunal in a letter dated 6 February 2013 stating that his marriage to the sponsor was not contrived for migration purposes and that at the time of the application they were in a genuine relationship as they loved each other and decided to share a life together.  Unfortunately, when the sponsor was spoken to in August 2011 they were having relationship problems and living separately.  However the applicant and his sponsor were speaking and trying to make efforts to reconcile. 

   The applicant denies that his relationship with the sponsor was contrived for migration reasons and the words of the sponsor herself who contradicted herself and gave different evidence when speaking to officers of the department and she even states that they were in a relationship as boyfriend and girlfriend.  The applicant says that he demonstrated a mutual commitment to a shared life with the sponsor and that their relationship was genuine and continuing. 

   The tribunal should have taken into account the applicant’s letter which clearly stated that the parties were in a genuine relationship and that they were having relationship issues when the wife was interviewed.  The wife’s views did not truly reflect the state of the relationship and the tribunal should have adjourned the proceedings to give the applicant an opportunity to repair their relationship.”

5. It should be noted that the applicant has not attended this morning. The matter was called at 10.15am and approximately 10.30am and although we have the benefit of an interpreter, we do not have the benefit of an applicant. The first respondent relies, in these circumstances scarcely surprisingly, on the written submissions filed and I have acceded to the first respondent’s counsel’s submissions that I should proceed under r.1303C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) to hear the matter on its merits in the absence of the applicant. I note there was correspondence handed up by counsel, sent to the applicant’s address as given in his application, which clearly shows that he should be on notice of this proceeding.

6. The first respondent’s written submissions set out the relevant law in terms that in my view are accurate, including the requirements of the legislation for the Tribunal to conduct a hearing. 

7. What follows, necessarily, is taken almost verbatim from the first respondent’s written submissions.  The applicant arrived in Australia holding a subclass 573 student visa.  He was reported for non-attendance by his education provider shortly after his arrival in Australia on 5 May 2009.  In September 2010, he applied for a visa.  That application, which has given rise to these proceedings, was made with the assistance of a migration agent.  A delegate refused that application on 4 November 2011.

8. The delegate recorded that in September 2011, the Department received public information that the relationship between the applicant and the sponsor had been contrived in order to obtain a visa to stay in Australia.  The details of the information included details of a home visit by departmental officers.  During the home visit, the sponsor conceded she was living with her boyfriend, a person who is not the applicant.  She conceded that she had entered into the marriage for visa purposes and that she had moved into her then address about three months beforehand.

9. She said she had never lived with the applicant on a full time basis but had been in a boyfriend/girlfriend relationship him that ended in November 2011.  She said she had no intention of pursuing a relationship with the applicant.  The applicant, upon being informed of these matters, responded in a fashion that would give no confidence that he had previously been truthful. 

10. On 23 November 2011, with the assistance of a migration agent, the applicant applied to the Tribunal for merits review and on 10 December 2012, the Tribunal invited the applicant to attend a hearing before it.

11. The invitation was sent via the applicant’s migration agent. The applicant did not respond to the invitation and did not attend the hearing. On 9 January 2013, the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act 1958 (Cth) (“the Act”), inviting comment on information that it considered might form a reason for affirming the delegate’s decision. It is not necessary to set out the terms of that correspondence in any detail. The applicant was notified of what the Tribunal was concerned about and given an opportunity to comment.

12. On 10 January 2013, the applicant’s migration agent contacted the Tribunal after receiving the s.359A letter. The migration agent claimed to have been unaware of the previous hearing. On 6 February 2013, the applicant replied to the s.359A letter, stating that his marriage was not contrived for migration purposes, that he and his sponsor were having problems and lived separately and he believed they would reconcile, though they had not done so up until that point and were still living separately and conducting their own lives. He likewise disavowed any knowledge of the previous hearing.

13. As the first respondent’s submissions make clear, the Tribunal rehearsed the relevant legal framework and the nature of the claims and evidence before it and found that notice of hearing was sent to the last fax number provided to the Tribunal by the authorised recipient.  The Tribunal recorded that the principle issue was whether the applicant was the spouse of his sponsor.  The Tribunal found a number of aspects of the relevant definition to be satisfied, such as, for example, the certificate of marriage.  However the Tribunal was ultimately not satisfied that the applicant was his sponsor’s spouse at the time of application and affirmed the decision under review.

14. It should be noted that in the face of the responses of the putative spouse on the home visit, that conclusion might reasonably be thought to have been unassailable. It was, on any view, a finding of fact. Contrary to the submission of the applicant, both in his application and in his written documentation, it is quite clear that the Tribunal expressly considered his letter in response to the s.359A notice. It is referred to, at Court Book (“CB”) 168 and I accept the written submission for the first respondent that it is clear that the Tribunal properly took the matter into account.

15. In my view and further and in any event, the application is restricted to a single merits review issue and merits review is not permissible in these circumstances.  The application is, I regret to say, devoid of merit and I will therefore order that it be dismissed.  So the application is dismissed, and the applicant is to pay first respondent’s costs fixed at $6,646.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  16 September 2013