Waensila v Minister for Immigration and Border Protection
[2015] FCCA 2276
•21 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAENSILA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2276 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Partner (Temporary) (Class UK) visa – whether the applicant met relevant criteria for the grant of a visa – whether the Tribunal adopted the correct construction of the relevant regulation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.252, 476 Acts Interpretation Act 1901 s.13 |
| Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204 Antipova v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCA 584 Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 |
| Applicant: | FARID WAENSILA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1214 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 21 August 2015 |
| Date of Last Submission: | 21 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the First Respondent: | Ms S Burnett Clayton Utz |
ORDERS
The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1214 of 2015
| FARID WAENSILA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 Tribunal made on 14 April 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The grounds of the application were as follows:
Ground 1
1. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and ignored relevant considerations and/or took into account irrelevant considerations/constructively failed to exercise jurisdiction regarding compelling and compassionate circumstances to waive Schedule 3.
Particulars
1.1 The Tribunal accepted that the Applicant’s claim that sponsor suffered “significant ill health” (CB 261; RRT dec p5 at [24);
1.2 The Tribunal failed to address the question that the sponsor's “significant ill health” was compelling and compassionate circumstances;
1.3 Erred in failing to ask the correct questions concerning the sponsor's health and the Tribunal committed jurisdictional error.
1.4 Ignoring the Sponsor's current health.
1.5 Applying incorrect test and/or ignoring current situation in Thailand and/or failing to properly review whether the Applicant was at risk owing to his earlier application for protection visa (CB 280 at [19]).
1.5 Taking into account irrelevant considerations - as to the amount of time in which the Applicant's offshore visa would be processed.
1.6 The fact that the Applicant had previously made visa applications to extend stay (CB280 at [18]); the Tribunal was failing to ask the correct questions and/or taking into account irrelevant consideration.
1.7 In failing to ask the correct questions concerning the sponsor's health circumstances and ignoring the Sponsor's current financial circumstances the Tribunal committed jurisdictional error.
1.8 In failing to ask the correct questions concerning all other matters and/or ignoring relevant materials and taking into account irrelevant considerations the Tribunal committed jurisdictional error.
Ground 2
2. The Tribunal denied the Applicant procedural fairness breaching s 425 of the Act in respect of determinative issue.
Particulars
2.1 The Tribunal stated in its findings: " .... That she is responsible for own health care ...” (RRT dec p5 at [26]).
2.2 The Tribunal “observed” however the Applicant and the sponsor were not given opportunity to explain the issue of sponsor's health.
2.3 The applicant was denied the opportunity to explain I present arguments regarding the sponsor's health care.
2.4 In failing to provide opportunity to appear I present arguments concerning the sponsor's health the Tribunal committed jurisdictional error.
The applicant applied for the visa on 10 September 2010 on the basis of his relationship with his sponsor. The delegate refused the application on 6 January 2014. On 30 January 2014, the applicant filed an application for review. The delegate refused to grant the visa on the basis the applicant did not satisfy cl.820.211(2)(d)(ii). It is clear from the delegate’s reasons that the delegate identified this as a criteria that had to be satisfied on the day of the application.
The Tribunal identified that the applicant had to meet the criteria under Schedule 3, relevantly criteria 3001. For the following reasons, the Tribunal found that the criteria within the 3001 was not satisfied:
10. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. This day, in the applicant’s case, was 11 February 2008. He lodged the visa application, the subject of this review, on 10 September 2010.
11. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
It was in those circumstances that the Tribunal turned to the issue of compelling circumstances. Relevantly, in Schedule 2 in respect of Subclass 820 Partner visa, there is set out certain interpretation provisions for that Part under cl.820.111. There is then set out the primary criteria under the reference to 820.2. Materially for this case, Schedule 2 provides:
820.21--Criteria to be satisfied at time of application
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(2A) An applicant meets the requirements of this subclause if:
(a) the applicant is:
(i) a SOFA member; or
(ii) a SOFA forces civilian component member; or
(b) the applicant:
(i) is a dependent child of a person referred to in paragraph (a); and
(ii) holds a valid national passport and certificate that he or she is a dependant of a SOFA forces member or a SOFA forces civilian component member, as the case requires.
(2B) The spouse or de facto partner of the applicant is prohibited from being a sponsoring partner if:
(a) the spouse or de facto partner is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and
(b) on the date of grant of that visa:
(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or
(ii) the applicant was the spouse or de facto partner of that woman, and that relationship had not been declared to Immigration.
(5) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the applicant last entered Australia as the holder of a Subclass 300 (Prospective Marriage) visa; and
(c) the applicant has married the Australian citizen, Australian permanent resident or eligible New Zealand citizen whom the applicant entered Australia to marry; and
(d) the applicant ceased to hold a substantive visa after marrying that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(e) the applicant is the spouse of the sponsoring partner; and
(f) the applicant is sponsored:
(i) if the applicant's spouse has turned 18--by the spouse; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
(6) An applicant meets the requirements of this subclause if the applicant:
(a) is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c) the applicant is sponsored:
(i) if the applicant's spouse has turned 18--by the spouse; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) continues to be the spouse of the sponsoring partner.
(7) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c) the sponsoring partner has died; and
(d) the applicant satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died; and
(e) the applicant has developed close business, cultural or personal ties in Australia.
(8) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c) the relationship between the applicant and the sponsoring partner has ceased; and
(d) any 1 or more of the following:
(i) the applicant;
(ii) a member of the family unit of the applicant who has made a combined application with the applicant;
(iii) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner.
(9) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the applicant has been the holder of a Subclass 300 (Prospective Marriage) visa; and
(c) while that visa was valid, the applicant married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(d) the relationship between the applicant and the sponsoring partner has ceased; and
(e) any 1 or more of the following:
(i) the applicant;
(ii) a member of the family unit of the applicant who has made a combined application with the applicant;
(iii) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner.
Note: For special provisions relating to family violence, see Division 1.5.
820.212
If:
(a) the applicant is the holder of:
(ii) a Subclass 475 (Skilled--Regional Sponsored) visa; or
(iii) a Subclass 487 (Skilled--Regional Sponsored) visa; or
(iv) a Skilled--Regional Sponsored (Provisional) (Class SP) visa; or
(b) the last substantive visa held by the applicant since entering Australia was:
(i) a Skilled--Independent Regional (Provisional) (Class UX) visa; or
(ii) a Subclass 475 (Skilled--Regional Sponsored) visa; or
(iii) a Subclass 487 (Skilled--Regional Sponsored) visa; or
(iv) a Skilled--Regional Sponsored (Provisional) (Class SP) visa;
the applicant has substantially complied with the conditions to which that visa was subject.
820.22--Criteria to be satisfied at time of decision
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975 ; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) The sponsorship mentioned in paragraph 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force.
820.221A
Unless the applicant:
(a) is, or has been, the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) is seeking to remain permanently in Australia on the basis of the applicant's marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Subclass 300 (Prospective Marriage) visa;
the sponsorship of the applicant under clause 820.211 has been approved by the Minister.
Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister's discretion to approve sponsorships.
820.223
(1) The applicant:
(a) subject to subclause (2)--satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and
(b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
(2) Paragraph (1)(a) does not apply to an applicant referred to in subclause 820.211(5) .
820.224
(1) Each member of the family unit of the applicant who is an applicant for a Subclass 820 visa is a person who:
(a) subject to subclause (2)--satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and
(b) if the person had turned 18 at the time of application--satisfies public interest criterion 4019; and
(c) satisfies public interest criterion 4020.
(1A) Each member of the family unit of the applicant who is not an applicant for a Subclass 820 visa is a person who:
(a) subject to subclause (2)--satisfies public interest criteria 4001, 4002, 4003 and 4004; and
(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
(2) Paragraphs (1)(a) and (1A) (a) do not apply to an applicant who:
(a) is a dependent child of an applicant referred to in subclause 820.211(5) ; and
(b) entered Australia as the holder of a visa of the same class as the visa held by that other applicant.
820.225
If a person (in this clause called the additional applicant):
(a) is a member of the family unit of the applicant; and
(b) has not turned 18; and
(c) made a combined application with the applicant--
public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.
820.226
The applicant satisfies public interest criteria 4020 and 4021 .
The Part continues to deal with secondary criteria and again has separate considerations in respect of criteria to be satisfied at the time of application and criteria to be satisfied at the time of the decision.
Mr Kumar, counsel for the applicant seeks to argue that on the face of the language used in cl.822.111(d) there is no apparent constraint in the application of that provision to the time of application. Mr Kumar seeks to argue that as this is a provision potentially dispensing with the requirements of other criteria, it should not be read narrowly. Mr Kumar points to other provisions such as those that were dealt with by Branson J in Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204, where the language of the regulation squarely and emphatically made clear that particular criteria had to be met “at the time of application”. In fact, in that legislative provision referred to by Branson J the provision referred to the meeting of the criteria “at the time of application and as applicable at that time.”
In a different context, Grey J in Antipova v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) FCA 584 has dealt with the language found in reg.1.15A and held that there was no warrant for reading down that provision to have application only at the time of the application materially, at paras.102 to 107. The difficulty with Mr Kumar’s construction is that the provisions of the regulation must be read in their context and further it permissible for the Court to take into account the heading in the construction of the regulations (see s.13 of the Acts Interpretation Act 1901 (Cth)).
Moreover, the construction propounded by Mr Kumar of counsel would give rise to a disharmony and render superfluous or incompatible provisions such as cl.820.211(1)(a), 820.221(3)(a) insofar as they refer to a continuing requirement to meet particular criteria. That disharmony strongly supports that on the proper construction the requirements of cl.820.211(1)(d)(ii) were correctly identified by the Tribunal as being criteria that must be met at the time of the application.
Whilst the reference to the decision of Branson J and Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 at [39] is not itself applicable to the determination of the issue of construction in this case, the outcome on the proper construction of the provision in its context is, in substance the same because in these circumstances the Tribunal correctly addressed itself to the issue of whether the compelling circumstances were met at the time of the application.
I reject the argument of the applicant that the Tribunal erred in adopting that construction. I do however accept Mr Kumar’s contention that it is not by reason of the decision in Boakye-Danquah that one finds a principle determinative of the construction issue raised in respect of cl.820.211(2)(d). That construction question turns upon the language used and the context of the provision in Schedule 2, taking into account the headings and the work done by the respective provision so as to give a harmonious reading.
By focusing upon the correct outcome as to whether the criteria were met at the time of application, the Tribunal adopted the correct construction of the regulation and there is no jurisdictional error of the kind advanced in ground 1. Mr Kumar also advanced that para.18 of the reasons of the Tribunal took into account an irrelevant consideration in the context of determining whether there were compelling circumstances. Paragraph 18 is as follows:
18. The applicant’s visa history indicates he has done “whatever it takes” to stay in Australia since initially arriving on a Visitor visa in November 2007. He initially made an unsuccessful refugee claim to the RRT. He then exercised every possible avenue to stay in Australia including judicial review in the High Court. None were successful. His last appeal was resolved in the High Court in October 2009. The applicant applied for his Partner visa (the subject of this review) on 10 September 2010.
Mr Kumar put that the reference to “whatever it takes” was an irrelevant consideration in the context of determining whether there were compelling circumstances. On a fair reading of para.18, I accept the first respondent’s submission that this was recounting the history of the applicant’s visa applications and does not appear to play a part in the reasoning process of the Tribunal in respect of compelling circumstances.
Further, the argument advanced in relation to the criticism of the Tribunal’s reasoning in para.18 and the finding as to no compelling circumstances are in substance an impermissible challenge to the merits of the matter which were within the domain of the Tribunal. Mr Kumar identified that the other errors he identified in relation to ground 1 were matters that turned upon whether the correction construction was as propounded by Mr Kumar. For the reasons given, the Tribunal’s construction was correct and no jurisdictional error was disclosed by any of the issues raised in respect of ground 1.
In relation to ground 2, Mr Kumar accepted the proper statutory invitation was sent to the applicant in respect of the hearing, at which the applicant appeared on 24 November 2014, and the argument advanced was, in substance, a constructive failure to exercise the power of the view. I am satisfied that there is no contravention of s.252 and it is clear that the Tribunal engaged in a fact-finding exercise in respect of compelling circumstances and made findings that were open on the material before the Tribunal. This is not a case where there was any constructive failure to exercise jurisdiction by the Tribunal. The amended application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 27 August 2015
20
2
3