Jood v Minister for Immigration & Anor [2016] FCCA 3031 (25 November 2016)

Last Updated: 29 November 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOOD v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3031

Catchwords: MIGRATION – Judicial review – Partner (Temporary) Class UK visa – decision of Administrative Appeals Tribunal – whether any jurisdictional error identified – whether impermissible merits review sought.

Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.65, 474, 476 Migration Regulations 1994 (Cth), cll.801.211, 820.211, 820.221

Cases cited: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534;

Applicant:

SUMIT JOOD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 554 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

25 November 2016

Date of Last Submission:

25 November 2016

Delivered at:

Perth

Delivered on:

25 November 2016

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Ms E Tattersall

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

(1) That pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH

PEG 554 of 2015

SUMIT JOOD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 2 December 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act (“Temporary Partner Visa”).

Background

2. The relevant background to the Judicial Review Application is as follows:
   1. the applicant lodged an application for the Temporary Partner Visa on 27 February 2014 (“Temporary Partner Visa Application”). The applicant was sponsored by his then partner, Jane Beaverstock (“Sponsor”);
   2. on 11 November 2014, the Delegate refused the grant of the Temporary Partner Visa. The Delegate was not satisfied that the applicant and Sponsor had been in a de facto relationship for 12 months prior to the date of the Temporary Partner Visa Application and, as the applicant had provided no material addressing the waiver of the requirement, found that no compelling reasons existed to waive the requirement. Accordingly, the applicant did not satisfy cl.820.211(2) of the Migration Regulations 1994 (Cth) (“Migration Regulations”);
   100. the applicant lodged an application for review of the Delegate’s Decision with the Tribunal, and by the Tribunal Decision dated 19 November 2015 the Tribunal affirmed the Delegate’s Decision not to grant the Temporary Partner Visa; and
   4. the Tribunal referenced the applicant's evidence at the Tribunal hearing that the applicant was no longer in a relationship with the Sponsor as she had left him for her former boyfriend and, on that basis, was not satisfied that the applicant met the requirements of cl.820.221 of the Migration Regulations.

Transcript of Tribunal hearing

3. The Minister filed an affidavit of Jake Terence Kyranis, sworn 20 January 2016 (“January 2016 Kyranis Affidavit”) a lawyer with the Minister’s solicitors, annexing a true copy of a transcript of the Tribunal hearing on 19 November 2015. Relevantly, that transcript is as follows (copied verbatim, with “T” meaning Tribunal Member, and “A” meaning Applicant):

T	I will now explain the process of this hearing to you. As you know you are invited to the hearing because your visa application for the de facto visa was refused by the Department of Immigration and you applied to this Tribunal to review that decision.
A	Yeah right.
T	The Tribunal is independent and separate from the Department. My job is to undertake what is called a merits review of your case.
A	Yep.
T	I'm not bound by the decision of the officer, I look at evidence fresh, from the beginning and make a new decision. I will take into account evidence provided to me in the Department's file which I have as well as any information you have provided to the Tribunal. You are invited here today to assist me as I make my decision. So this is your opportunity to present your arguments and your claims in support of your own application for review, it's also an opportunity for me to ask you some questions. If there is any question I ask that you don't understand please let me know, you can simply raise your hand.
A	No worries.
T	And I wish you to tell me everything you think is important for me to know about the situation to help me make my decision. I will listen to the evidence that you give today.
A	Yep
T	Now umm, I won't make my decision immediately here today but I will make it as soon as I can and you will receive a copy of the decision in writing. Now being a hearing of the Migration Tribunal this is a public hearing and that means a member of the public can enter the hearing room at any time.
A	Yep.
T	That does not normally happen though, it's normally the applicant who is here for their own matter. The hearing is being recorded.
A	Right.
T	You will also see me taking notes on my own computer. This is for my decision making purpose.
A	Yeah no worries.
T	Alright, so ah, I'm just saving this. Now Mr Jood you have been refused the visa on the basis that the delegate was not satisfied you met the requirements for the de facto visa.
A	Yep.
T	Umm, and specifically the delegate was not satisfied that you and Ms Beaverstock, the sponsor, were in a de facto relationship for at least 12 months before that visa application was lodged because that is the requirements for the visa.
A	Yeah that’s right.
T	Now Ms Beaverstock was invited to the hearing today. What, where is she and why is she not here?
A	Well, I will make myself clear. So we are not together anymore.
T	Right.
A	Is like I went to India in last December when I filed my case thing and then when I came back [inaudible].
T	Living with the family?
A	Yeah, both of us we were living with a family.
T	Yes.
A	So when I came back they just told me that she moved out with her ex-boyfriend and they have no idea where she is. I tried to contact her but she has changed her number so basically we are not together anymore. She took money out of my, you know cause we had like a joint account. She just took money out of my account and then I don't know where she went but they told me I think she moved to Melbourne or somewhere. So we are not together so I can't really say anything at the moment.
T	Because you are not together in a continuing relationship.
A	Yep.
T	You don't meet the de facto criteria obviously.
A	Yep, I know.
T	So what do you want to say, or what relief do you think the Tribunal might have for you.
A	I don't know what's going to happen. Cause I know it's going to get refused because she is not with me anymore so I have no idea what I have to do now so basically I'm just confused. Cause she yeah, when I came back in Feb, 2nd of Feb, I thought everything was going alright and when I came back they told me she moved with her ex-boyfriend and she doesn't stay there anymore.
T	Ok, everything was going alright?
A	Yeah it was fine, so like when I went to India we had planned to go together and then somehow right before I was going umm, the case officer he refused my file. Like they said like, I don't bring all those [inaudible] things. And then she told me sorry, they refused my file and then I was talking to like maybe it's fine I will like go to India we will get married there and everything will be alright but the last day she just cancelled the ticket and she said it's fine, you just go this time and we just go next time. And I went back and when I came back she was not there anymore.
T	Ok.
A	She changed her number so I couldn't even contact her.
T	Alright, there are exceptions that apply where the relationship has ended but I don't believe from what you have told me that they apply, she is not deceased for example, she is alive?
A	Yeah, she is alive.
T	And your relationship ended rather amicably? It was fine and then she decided otherwise to be with her ex so I don't think the family violence exception applies, that's where there's harm [inaudible] between a couple basically. And there is no child of the relationship?
A	No nothing.
T	No child, where there is a child as well there can be an exception where there are parenting orders in place but apart from that Mr Jood you don't have today any grounds for a de facto visa.
A	Yeah nothing at all.
T	And there is no point then going through the 12 month issue with you because it's no longer ongoing and you can't meet the requirements today.
A	I can't, I don't know what I have to do now.
T	Well I suggest you seek migration advice and look at your options but certainly where a relationship has ended unless there is one of these exceptions about children or deceased people or family violence you can't meet the visa requirements of the ongoing relationship.
A	Yeah I know.
T	Alright, Mr Jood I'm going to write up this decision and I will have to affirm the decision, particularly as that relationship is no longer ongoing
A	Yep, that's right.
T	So you will receive a copy of the decision in the mail. In the meantime as I suggested perhaps you go and look at your migration, get some migration advice and ...
A	Yeah cause I need to know, cause [inaudible] is like 10 months already I'm like stressed cause I don't know how I'm going to stay here so like I have no visa at all cause before I was studying and everything was fine and we just decided to marry.
T	Yeah.
A	I don't know everything was ok and when I just came back she just, I don't know how come, she just decided to move on and yeah.
T	Well I thought that you did look happy in the photos but sometimes things just don't work out and that's for a reason in life and so I wish you the best and good luck, but unfortunately you don't meet the de facto visa requirements
A	Yeah I know yeah.
T	Thank you, you can leave now.
A	Thank you very much.
T	Bye bye.

Tribunal Decision

4. On 18 November 2016 Mr Kyranis affirmed an affidavit annexing both the Delegate’s Decision and the Tribunal Decision (“November 2016 Kyranis Affidavit”).
5. The Tribunal Decision relevantly provided as follows:
   • CONSIDERATION OF CLAIMS AND EVIDENCE
   • 6. The issue in the present case is whether the applicant meets the requirements of the subclass 820 visa.
   • Whether the parties are in a spouse or de facto relationship
   • 7. Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
   • 8. The applicant told the tribunal that he was no longer in a relationship with the sponsor. He went to India and returned to find that she had left him. He was told she left him for her former boyfriend. They had been getting along fine before this time. They have no children.
   • Are the parties in a de facto relationship?
   • 9. 'De facto partner' is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
   • 10. The tribunal finds on the basis of the applicant's oral evidence, that he is no longer in a de facto relationship with the sponsor.
   • 11. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of decision.
   • 12. Therefore the applicant does not meet c1.820.221.
   • 13. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
   • DECISION
   • 14. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Grounds of the Judicial Review Application

6. The Judicial Review Application sets out the following grounds:
   • 1. I was born on 10/03/1990
   • 2. I am currently on Bridging visa A because of my Refusal of Partner (Temporary) (Class UK) visa
   • 3. I applied for the Partner visa on 27/02/2014 and then it was Refused on 11/11/2014 by Department of Immigration and Border protection.
   • 4. Subsequently I lodged review appeal with AAT and same has been turned down 19/11/2015
   • 5. In my opinion DIBP and AAT made the judicial error in refusing my application.

(Copied verbatim).

Minister’s Response

7. On 16 December 2015 the Minister filed a Response opposing the orders sought by the applicant. The grounds of opposition are as follows:
   • The first respondent relies upon the following grounds and particulars in defence of the application:
   • 1 The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 19 November 2015.
   • 2 The application for judicial review does not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.

Order for show cause hearing

8. On 20 January 2016 a Registrar of this Court listed the matter for a show cause hearing today before a Judge of the Court.

Submissions

Applicant’s submissions

9. The applicant filed no written submissions. In his oral submissions he was unable to articulate:
   1. how he met the criteria for a Temporary Partner Visa at the time of the Tribunal Decision; and
   2. how the Tribunal Decision was said to be affected by jurisdictional error.

Minister’s submissions

10. The gist of the Minister’s written and oral submissions reflected the Minister’s Response set out at [7] above.

Consideration

11. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
    1. identifies a wrong issue;
    2. asks the wrong question;
    100. ignores relevant material; or
    4. relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

12. The process of a person obtaining a permanent partner visa on the basis of a spouse or de facto partner being an Australian citizen involves a two-stage process.
13. The first step requires the applicant to obtain a Temporary Partner Visa, that being the type of visa the subject of this proceeding and the Tribunal Decision.
14. Clause 820.211 of the Migration Regulations essentially requires that, at the time of the application, the applicant be the spouse or de facto partner of the Sponsor. Exceptions to that requirement include where the relationship between an applicant and Sponsor has ceased as the Sponsor died or the applicant has suffered family violence committed by the Sponsor: Migration Regulations, cl.801.211(7) to (9). Those particular exceptions only apply in circumstances where an applicant had either been the holder of a Subclass 300 (Prospective Marriage) visa at the time of the application or the Subclass 300 (Prospective Marriage) visa had ceased at the time of the application. Those exceptions do not apply here.
15. Clause 820.221 of the Migration Regulations then requires that, at the time of the relevant decision (here the Tribunal Decision), that the applicant continues to be the spouse or de facto partner of the Sponsor. Exceptions to that requirement include situations in which the applicant would continue to meet the requirements of cl.820.211(2), (5) or (6) of the Migration Regulations, except that:
    1. the Sponsor died: Migration Regulations, cl.820.221(2);
    2. the relationship ceased and the applicant, or a relevant dependent child, suffered family violence committed by the Sponsor: Migration Regulations, cl.820.221(3)(b)(i); and
    100. the relationship ceased and the applicant either had custody, joint custody, access to, a residence order or contact order in relation to a child with respect of whom the Sponsor had been granted joint custody or access or a residence or contact order: Migration Regulations, cl.820.221(3)(b)(ii).
16. To the extent that the application seeks review of the Delegate’s Decision the Court does not have jurisdiction to review the Delegate’s Decision pursuant to s.476(2) of the Migration Act as it is a primary decision: Migration Act, s.476(4). In any event, it is plain from the transcript of the Tribunal hearing, and the subsequent Tribunal Decision, that the Tribunal considered the matter afresh on the merits, and had regard to the facts at the time of the Tribunal hearing. Thus, if the Tribunal Decision is not flawed, it will cure defects and irregularities in the Delegate’s Decision such as are contended for in this case: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314.
17. The Judicial Review Application does not identify any ground of review except to contend that the Tribunal made a "judicial error" (which the Court has taken to mean “jurisdictional error”). The ground is merely an unparticularised assertion that the Tribunal made a mistake and cannot disclose jurisdictional error: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] per Judge Lucev.
18. The Tribunal’s finding that the applicant did not meet the relevant criteria for the grant of the Temporary Partner Visa was the only finding open to it in circumstances where the applicant's evidence at the Tribunal hearing was that:
    1. he and the Sponsor were no longer in a relationship;
    2. the Sponsor had not died;
    100. the family violence exception did not apply; and
    4. there were no children of the relationship with the Sponsor, and therefore no parenting orders in place.
19. The Court also observes that the applicant effectively conceded at the Tribunal hearing that he was unable to satisfy the criteria for the Temporary Partner Visa.
20. No jurisdictional error in the Tribunal Decision is revealed by the grounds of the Judicial Review Application, and no jurisdictional error is otherwise apparent in the Tribunal Decision.

Conclusion and orders

21. The Court having concluded that there is no jurisdictional error in the Tribunal Decision it follows that the application must be dismissed pursuant to r.44.12 of the FCC Rules as it raises no arguable case. There will be an order accordingly.
22. The Court will hear the parties as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 25 November 2016