VERMA v Minister for Immigration

[2016] FCCA 2298

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERMA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2298

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Residence) (Class BS) visa – whether the Tribunal failed to conduct its own inquiry – whether the Tribunal adequately dealt with the applicant’s claim of family violence – whether the Tribunal breached its obligation under sections 359 and 360 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 5F, 359, 360, 476

Migration Regulations 1994 (Cth), regs.1.23. 1.24, Schedule 2 – cl.801.221

Applicant: ANIL VERMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1459 of 2015

Judgment of: Judge Street

Hearing date: 1 September 2016

Date of Last Submission: 1 September 2016

Delivered at: Sydney

Delivered on: 1 September 2016

REPRESENTATION

Solicitors for the Applicant: Mr C Guan
Paul Guan & Associates

Solicitors for the Respondents: Ms E Cheesman
Clayton Utz

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1459 of 2015

ANIL VERMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 Migration Review Tribunal (“the Tribunal”) made on 12 May 2015, affirming the decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa.

2. The applicant is a citizen of India who applied for a Partner visa on the basis of his relationship with an Australian citizen (“the Sponsor”) on 8 July 2011. On 22 August 2012, the applicant was granted a Partner (Temporary) subclass 820 visa on the basis of his spousal relationship with the Sponsor. On 30 January 2014, the delegate refused to grant the Partner (Residence) visa. 

3. Relevantly, the delegate found that there was no evidence to support the claimed relationship between the applicant and the Sponsor. The delegate was not satisfied that the relation was ever genuine. Based on the relationship never being genuine, the delegate was not satisfied that the applicant met the definition of “spouse” as given in s.5F of the Act or the definition of “de facto partner” as given in s.5CB of the Act. Accordingly, the Delegate found that the applicant did not meet cl.801.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. The delegate also found that the applicant did not satisfy cl.801.221(2A), (3), (4), (5), (6) or (8) of Schedule 2 to the Regulations. Accordingly, the delegate found that the applicant did not satisfy cl.801.221(1) and did not meet the requirements in cl.801.221 of Schedule 2 of the Regulations at the date of decision.

5. The delegate found that as those requirements in cl.801.221 were not met, the criteria for the grant of Partner (Residence) visa were not met and refused the application.

6. The applicant applied for review of the delegate’s decision by the Tribunal on 10 February 2014. By letter dated 23 December 2014, the applicant was invited to attend a hearing on 17 March 2015 to give evidence and present arguments. That letter invited the applicant to provide any further evidence that he wished to rely upon to the Tribunal no later than 10 March 2015.

7. The applicant completed a response to that hearing invitation and attended the hearing on 17 March 2015 to give evidence and present arguments. Prior to the hearing, on 9 February 2015, a letter was sent by the applicant’s migration agent foreshadowing a claim that the applicant had suffered family violence perpetrated by his wife, the Sponsor. The letter further stated that the applicant was collecting the evidence “as per reg.1.24”. However, no such material was provided to the Tribunal. 

8. By letter dated 18 March 2015, the Tribunal invited the applicant to provide any additional material on or before 10 April 2015. No such material was provided. On 9 April 2015, the Tribunal gave the applicant a further opportunity to provide any additional relevant material he wished to rely upon no later than 24 April 2015. The applicant provided no such material. 

9. The applicant was invited by letter dated 9 April 2015 to attend a Tribunal hearing on 1 May 2015. On 24 April 2015, the applicant’s migration agent wrote an email to the Tribunal, identifying that the reference in the Tribunal invitation to the requirements of Schedule 3 was not one that arose in the present case. The applicant’s migration agent suggested to the Tribunal that the hearing on that issue was not necessary and should be vacated. There was no reference in the email of 24 April 2015 to a request for any further time to put on material in relation to the applicant’s claim of family violence. No material was provided to the Tribunal in accordance with reg.1.23 of the Regulations.

10. The Tribunal correctly identified that the criteria in relation to the grant of the Partner visa set out in part 801 of Schedule 2 to the Regulations. The Tribunal noted that there were no criteria to be satisfied at the time of the application. The Tribunal identified that the primary criteria to be satisfied at the time of decision were set out in cl.801.22. The Tribunal made reference to cl.801.221(1), requiring the applicant to meet the requirements of subclauses (2), (2A), (3), (4), (5), (6) or (8).

11. There was no remittal of the decision for reconsideration before the Tribunal under cl.801.221(8). The Tribunal made reference to the applicant appearing before the Tribunal on 17 March 2015 to give evidence and present arguments. The Tribunal identified other evidence that was adduced.

12. The Tribunal noted that at the hearing, it was informed by the applicant that his relationship with the Sponsor had ceased in November 2013. The applicant’s migration agent wrote to the Tribunal on 9 February 2015, claiming that the relationship between the applicant and the Sponsor had broken down due to the allegation that the applicant had suffered family violence by the sponsor, and that the applicant was collecting evidence as per reg.1.24. The Tribunal noted that, during the hearing, the applicant’s agent stated the applicant claimed that he had suffered family violence by the Sponsor, although he did not have the evidence to substantiate that claim in accordance with the Regulations.

13. The Tribunal noted that the applicant informed it he was still collecting the evidence. The Tribunal noted that the applicant had had significant time to make such a submission previously and had not done so. The Tribunal pointed out to the applicant and his agent that in order to make a valid claim that the applicant had suffered family violence committed by the Sponsor, there were statutory requirements that were required to be met. The Tribunal found that at the time of the decision, the applicant had not made either a judicially determined or non-judicially determined claim of suffering family violence in accordance with reg.1.23 of the Regulations.

14. The Tribunal was correct in saying that it had no valid claim to consider. The Tribunal was satisfied on the applicant’s own evidence that at the time of decision, the applicant and his Sponsor were not in a relationship which was genuine and continuing as required for the purposes of the Act under s.5F(2)(c) or s.5CB(2)(b).The Tribunal found that it was not satisfied that the definitions of spouse or de factor under the Act were met.

15. The Tribunal found that the applicant could not satisfy the criteria in cl.801.221(2)(c) for the grant of a visa. The Tribunal further found that there was no evidence that the applicant met the criteria under cl.801.221(2A), (3), (4), (5) or (6). The Tribunal found the applicant did not satisfy the criteria for the grant of a Partner visa and affirmed the decision of the delegate.

16. The grounds of the amended application are as follows:

    “1. The second respondent has made jurisdictional errors by misdirecting itself the issues for review but by failure to determine the real review issues according to the law.

    Particulars

    (i) The application before the second respondent is an application for review of a decision by a delegate of the first respondent to refuse the applicant a Partner (Residence) (Class BS) visa subclass 801.

    (ii) Relevantly, the second respondent was obliged to assess whether the applicant can meet the subclause 801.221 (2), (2A), (3), (4), (5), (6) or (8) as per required Clause 801.221(1).

    (iii) In November 2013 both the applicant and the sponsor had advised the department that the relationship had broken down.

    (iv) On 23 December 2014 the second respondent sent a letter to the applicant inviting him to appear before it. “In considering your review application the Tribunal must takes into account certain matters regarding the visa applicant and the sponsor. These matters include the financial and social aspects of the relationship, nature of the household, and the nature of each person's commitment to the relationship” (extracted from the tribunal letter of 23 December 2014).

    (v) The request appeared to be necessary to assess whether the applicant could meet the requirements of cl.810.221(2) –“the applicant and sponsor are not in a relationship which is genuine and continuing as required for the purpose of Act ...” (para 13 of the department's decision; CC245).

    (vi) In the case of assessing the issue of “continuing”, the applicant's own advice was already self explanatory.

    (vii) Or the assessment appeared to be consistent with the reasoning of the department officer – “In order to be granted a Subclass 801 visa under the family violence provisions, you must have been the spouse of the sponsoring partner prior to the relationship ceasing.” (extracted from the letter of department officer, CC98)

    (viii) On 9 February 2015 the applicant advised the tribunal that the breaking down of the relationship was “because he suffered family violence perpetrated by the sponsor.”

    (ix) Despite the advice, at the tribunal hearing which took place on 17 March 2015, the tribunal had devoted two hours to examining the issues of the genuineness of the relationship but nothing else.

    (x) The assessment might be partly relevant to or might not really be relevant to the requirements of subclause 801.221(2), however, it was quite obvious that the applicant could not meet the subclause as per his own advice and evidence given more than one year ago.

    (xi) In the Invitation to appear before the tribunal issued on 18 March 2015 and Rescheduled hearing on 9 April 2015, the two letters stated the same, that is, “one of the issues the Tribunal will be considering at the hearing is – whether you have complied with the timeframe requirements in Schedule 3 at the time you lodged your visa application and, if not, whether there are any compelling reasons for not applying these requirements.”

    (xii)   The migration agent wrote to the second respondent advising that the issue was not related to the visa grant criteria for a subclass 801 visa but one of the visa grant criteria for a UK Partner (Provisional) subclass 820 visa -820.221(2)(d)(ii), and the hearing was not necessary and should be vacated. On the early morning of 1 May 2015 the second respondent advised that the hearing be vacated.

    (xiii) There is no evidence that the second respondent has considered the issues of whether the applicant can meet the subclause 801.221 (2A), (3), (4), (5), (6) or (8).

    (xiv) The second respondent had identified the family violence as the relevant issue for review under cl.801.221(6)(a)(b)(c)(i) in its decision.

    (xv) However, there was no evidence that the second respondent had requested any relevant information under s 359, nor was there any evidence that they had held any hearing for the issue of family violence under s360.

    2. The second respondent had not discharged its duties or obligations under s360 and s359 Migration Act.

    Particulars

    (i) S360(1) provides that “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review"

    (ii) The tribunal had identified the family violence as the issue/s arising in relation to the decision under review as shown in the decision.

    (iii) But there was no evidence that it had invited the applicant to appear before it.

    (iv) S359 allows the tribunal to get more information relevant to the review. However, the tribunal had not requested any information on family violence under s359”

17. Mr Guan, the solicitor for the first respondent, acknowledged that the requirements of reg.1.23 of the Regulations were not met and that there was no statutory material or other material that could enliven a family violence claim before the Tribunal. Notwithstanding that, Mr Guan sought to argue in relation to ground 1 that there was a duty upon the Tribunal to make inquiries.

18. Mr Guan failed to identify any information that was easily ascertainable in relation to that duty. Mr Guan failed to identify what it was that he said was the real issue in respect of such an inquiry. Mr Guan suggested that the provision in respect of which his client was entitled to pursue the grant of a visa was cl.801.221(6) of Schedule 2 to the Regulations. That is the provision relating to family violence.

19. It is apparent that there was no material to enliven any issue in respect of family violence before the Tribunal. It is apparent that the applicant’s migration agent, prior to the hearing, foreshadowed a need to comply with such requirements and had not done so either at the time of the hearing or in relation to the further opportunities that were given by the Tribunal.    Ground 1 fails to identify any jurisdictional error. Ground 1 had no reasonable prospect of success.

20. In relation to ground 2, it was suggested that there had been some failure to comply with s.359 and s.360. Mr Guan argued that the issues arising in relation to the decision were ones that extended beyond simply the family violence. Ground 2 does not support that submission and expressly refers to, in (iv), family violence.

21. It is apparent that the Tribunal raised with the applicant at the hearing that there were statutory requirements that had to be met in order to pursue any ground of family violence. It is also apparent that the applicant had a hearing at which he was invited to attend and a real and meaningful opportunity to present evidence and arguments. I am satisfied that the applicant had a genuine hearing. There was no breach of ss.359 or 360 of the Act.

22. Mr Guan submitted that the issues might have included the other potential requirements of the subclauses under cl.801.221 of Schedule 2 to the Regulations. That is not something that is identified in ground 2. Nor is it something that is arguable in light of the finding of the Tribunal in paragraph 14 of its decision record, that there was no evidence that the applicant met the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6). Ground 2 fails to make out any jurisdictional error. Ground 2 had no reasonable prospects of success.

23. The amended application is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 November 2016