FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2019] FCA 162

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 29 August 2018, which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). By its decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) to cancel the appellant’s visa.

2    On 14 November 2014, the appellant was granted a Subclass 573 student visa on the basis that he was a member of the family unit of his wife, Ms Kaur, who was the primary applicant for the student visa: see cl 573.311 in Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). A person is a member of the family unit of an applicant for a student visa if the person is a spouse or de facto partner of the applicant: reg 1.12(2). At the relevant time, s 5F of the Migration Act 1958 (Cth) (the Act) defined “spouse” as follows:

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)     they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)     they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(c)     the relationship between them is genuine and continuing; and

(d)     they:

(i)     live together; or

(ii)     do not live separately and apart on a permanent basis.

(3)     The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

3    On 11 August 2015, the appellant was given notice of an intention to cancel his visa under s 116(1)(a) of the Act, which provides:

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)     the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; …

4    The reason for the notice was that the appellant no longer appeared to be a member of Ms Kaur’s family unit. In short, on information available to the Minister, the appellant and Ms Kaur were no longer living together and were no longer in a relationship. According to Ms Kaur, a week after the appellant had arrived in Australia (November 2014), he moved to Sydney. They had not been together since that time. Although the appellant maintained that he and Ms Kaur remained in a legal relationship, he accepted that he was living “far from her”.

5    The appellant’s visa was cancelled on 28 August 2015. The appellant applied to the Tribunal to review the cancellation decision. The appellant appeared before the Tribunal on 20 June 2016 to give evidence and present arguments.

6    In its Decision Record, the Tribunal recorded the following matters:

6.    In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate's decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated that it appears that Ms Kaur had advised the Department that she and the applicant are no longer in a relationship, which means that he is no longer a member of her family unit. The applicant stated that Ms Kaur had deserted him and cheated on him. He said he still wants to have a relationship with her but she left him. He however confirmed that they are no longer in a relationship.

7    The Tribunal also recorded the following matters:

8.    The applicant gave evidence that his marriage to Ms Kaur was an arranged marriage and it was not for love. He stated that this is not unusual in India. He said that he was not doing well in India in terms of employment and his neighbour told him that Ms Kaur is very educated. He stated that prior to the marriage ceremony, he had not met Ms Kaur. He said subsequent to the marriage they lived in India for about a year as a couple and later they decided to come to Australia. He said they lived together in Australia for about 3 to 4 weeks and Ms Kaur left him after that period. He stated that he had to sell family land to pay for Ms Kaur's courses in Australia. He said he gave her about $25,000. He said he has not told his family about the breakdown of his marriage. He confirmed that they have no children.

8    Although the Tribunal had doubts that the marriage between the appellant and Ms Kaur was genuine, it proceeded on the basis that it was. However, on the evidence, it was not satisfied that the relationship between them was ongoing. The Tribunal made this finding:

10.    Although the applicant indicated that he would like to have a relationship with Ms Kaur, on the basis of the available information, the Tribunal finds that the applicant and Ms Kaur have ceased to be in an ongoing relationship and that the applicant has ceased to be either a spouse or a de facto partner of Ms Kaur. Therefore, the Tribunal finds that the applicant has ceased to be a member of Ms Kaur's family unit. The Tribunal finds that as the applicant's visa was granted on the basis of him being married to Ms Kaur, that basis no longer exists.

9    Having expressed its satisfaction that the ground of cancellation under s 116(1)(a) of the Act existed, the Tribunal went on to consider whether, as a matter of discretion, the power to cancel should be exercised: see s 116(3) of the Act. In this connection, the Tribunal had regard to the Department’s Procedures Advice Manual PAM3.

10    The Tribunal considered a number of discretionary factors, including the purpose of the appellant’s travel to, and stay in, Australia. The Tribunal noted that the appellant was not in breach of a visa condition, but that his spousal relationship with Ms Kaur had ceased. The Tribunal said:

15.    ... Whilst acknowledging that the spousal relationship has ended, the applicant indicated to the Tribunal that he still wants to have a relationship with Ms Kaur. The Tribunal is satisfied that whilst the applicant has his own personal wishes about the relationship, on the evidence before it, the Tribunal is satisfied that the relationship has ceased.

11    The Tribunal considered the degree of hardship that may be caused to the appellant if his visa were to be cancelled. The Tribunal made these findings:

16.    The applicant gave evidence that he is currently working for 20 hours a week in a car wash facility at Parramatta. He stated that he is living with a friend and the friend's spouse in Blacktown. He has no relatives in Australia. His father is deceased and his mother lives in India. He has a brother and a sister, both of whom live in India. He indicated that he would like to undertake studies in English. Whilst it is plausible that he would like to undertake studies in English, the applicant has not pursued any studies and on his own evidence, he is working in Australia suggesting that his current purpose in remaining in Australia is to work.

17.    The Tribunal is of the view that if the applicant's visa is cancelled, this may cause him some financial difficulty, particularly in light of his evidence that he has given Ms Kaur approximately $25,000, being proceeds of the sale of family assets in India. Potentially, if the applicant does not have a visa, he could be placed in detention under s.189 and be subject to removal from Australia under s.198. He would have limited options to apply for further visas whilst onshore and he could be required to return to India.

18.    The Tribunal observes that in the course of the hearing the applicant became tearful and genuinely upset about his circumstances. The Tribunal takes this opportunity to acknowledge the applicant's personal disappointments and sadness about what has happened with his marriage. The visa cancellation would undoubtedly cause him some personal challenges and the Tribunal has taken those matters into consideration.

19.    The Tribunal appreciates that the cancellation of the visa may cause the applicant a certain degree of hardship. However, looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that outweighs the reasons to cancel the visa.

12    After considering various other matters, which do not call for specific mention in these reasons, the Tribunal expressed its satisfaction that there were no factors that would lead to the favourable exercise of its discretion. The Tribunal therefore affirmed the decision under review.

The Circuit Court

13    The grounds of the appellant’s application for judicial review were expressed as follows (errors in original):

1.    Department of Immigration and Boarder Protection (DIBP) had cancelled my Student Dependent Visa Application Subclass 573. where I was in continuous relationship with my partner. But the DIBP didn’t consider it and cancelled my Visa.

2.    Then I lodged an appeal against my Visa Cancellation to Administrative Appeal Tribunal. Administrative Appeal Tribunal invited me to hearing But the AAT member also did not agreed and refused my application for Appeal.

I believe DIBP and MRT-RRT made Judicial Error which needs to be rectified.

(Errors in original.)

14    The primary judge rejected each of these grounds. In doing so, the primary judge noted that the appellant’s application for judicial review appeared to proceed on an assumption that his visa could not be cancelled unless he was divorced from Ms Kaur. The primary judge noted that the appellant’s contentions to this effect misunderstood the basis for the Tribunal’s decision, as well as the requirements of the Act and Regulations. The primary judge accepted that, in its Decision Record, the Tribunal was directing its attention to whether the appellant’s and Ms Kaur’s spousal relationship no longer existed.

15    At [36] to [37], the primary judge said:

36.    In circumstances where Mr Kumar had confirmed to the Tribunal that he was no longer in a relationship with his wife, the Tribunal’s finding in relation to s.116(1)(a) is not attended by jurisdictional error. There was, as the Minister submitted, an evidentiary foundation for its finding in this respect in the information described in the delegate’s decision record (that Ms Kaur had advised that she and the Applicant were no longer in a relationship) and also in the Applicant’s evidence at the Tribunal hearing that Ms Kaur had deserted him some three to four weeks after they started living together in Australia, had deceived and cheated on him and had a relationship with some other boy, that he had no contact with her whatsoever at the time and that they were no longer in a relationship.

37.    It was not necessary for the Tribunal to have documentary evidence, such as evidence of a divorce, to reach that factual conclusion. Further, the fact that the Applicant was still legally married and wished to resume a relationship with Ms Kaur did not mean that the Tribunal’s finding was affected by error. Rather, it reflected a correct application of s.116(1)(a) of the Act.

16    Relatedly, at [51], the primary judge said:

51.    The Applicant’s disagreement with the conclusion reached by the Tribunal is not indicative of jurisdictional error. Contrary to his submission, the fact that he was not divorced did not mean that the Tribunal could not reach the conclusion that it reached. There was also no obligation on the Tribunal to give the Applicant documents (or to be satisfied that the Applicant was divorced) to support its finding that the relationship had ceased.

17    The primary judge also directed attention to the discretionary considerations raised before the Tribunal, saying at [49] to [50]:

49.    The Tribunal expressly considered the circumstances raised by the Applicant. In particular, it considered and accepted that a degree of hardship may be faced by him having regard to his financial circumstances, the consequences of the visa being cancelled, and his personal disappointments and concerns. However it found that this did not outweigh the reasons to cancel the visa. In other words, the hardship issues were not of sufficient weight to warrant the exercise of the discretion in the Applicant’s favour, either considered alone or cumulatively with all the other factors to which the Tribunal referred.

50.    Such an evaluative judgment was open to the Tribunal on the material before it. There is nothing in the circumstances of this case to suggest that the Tribunal’s exercise of its discretion was legally unreasonable or reflected a misapplication of its statutory task. I note that the weight to be given to competing circumstances is a matter for the Tribunal, subject of course to the constraint of legal unreasonableness. There is nothing to give rise to any concern in that respect in this case or to suggest any failure by the Tribunal to have regard to any matter raised by the Applicant.

18    The primary judge was satisfied that no jurisdictional error had been established on any of the bases contended for by the appellant, and dismissed his application.

The appeal

19    The appellant’s grounds of appeal are expressed as follows:

1.    I appeared before Her Honour Judge Barnes who was kind to me and dismissed my application on 29 August 2018 as Her Honour took into account the First Respondent’s Outline of Submissions and not my submissions filed in Court on 5 March 2018.

2.    I do believe that I have an arguable case because the Tribunal failed to consider the lack of proof that I was separated from my partner at the time and that I was divorced.

3.    The Tribunal did not have documentary evidence such as divorce document to reach the factual conclusion.

4.    I do hope that the Federal Court of Australia will look at my situation differently because the decision of the Tribunal is affected by error as well as the Order of Judge Barnes is affected by error and I have not yet received the judgment.

20    On 19 October 2018, orders were made in relation to the preparation of the appeal for hearing, including an order that the appellant file and serve a written outline of submissions by no later than 10 business days before the hearing of the appeal. The appellant has not complied with that order. The Minister has filed a written outline of his submissions.

21    The appellant appeared in person at the hearing of the appeal, assisted by an interpreter. I invited him to address me on his grounds of appeal. In response, he said that he believed that the Tribunal had made a mistake in finding that he was “not with (his) partner at the time”. He said that there was no proof that he was not with her (Ms Kaur) and that he was, in fact, in a relationship with Ms Kaur at the time his visa was cancelled. He said that there was no evidence that he and Ms Kaur had divorced. He said that, similarly, the Circuit Court had no proof that he and Ms Kaur were not in a relationship or were divorced. He said that the Circuit Court made the wrong decision and should not have made the decision it did without evidence or proof.

22    The appellant’s claim that he was, in fact, in a relationship with Ms Kaur at the time his visa was cancelled is not only contrary to the Tribunal’s findings, it is also contrary to the evidence he gave to the Tribunal and the information provided by Ms Kaur. His unequivocal evidence to the Tribunal was that, after three or four weeks in Australia, he moved to Sydney from Brisbane and that, at the time of the Tribunal hearing, he was not in a relationship with his wife and had “no contact with her whatsoever”, although he still wanted to have a relationship with her. Paradoxically, he suggested in his evidence to the Tribunal that it was Ms Kaur who left him (even though he was the one who left Ms Kaur after three or four weeks in Brisbane with her) and that she had started having a relationship with someone else. The suggestion that Ms Kaur might now be in a relationship with someone else was repeated in the appellant’s oral submissions in this appeal.

23    In his oral submissions, the appellant also referred to the fact that he had helped Ms Kaur with $25,000 but that, after he and Ms Kaur arrived from India, “everything changed” and he had “lost money”. He said that Ms Kaur never picked up the telephone when he called.

Analysis

24    As to the first ground of appeal, I reject the allegation that the primary judge took into account the Minister’s outline of submissions, but not the appellant’s submissions.

25    At [25] to [51], the primary judge gave detailed consideration to the appellant’s written submissions, in conjunction with the Minister’s responses thereto. It is clear that the primary judge not only considered the appellant’s written submissions, but raised certain aspects of them with him for elucidation. I directed the appellant’s attention to these matters and invited him to explain why, in the first ground of appeal, he contended that the primary judge had not taken his submissions into account. The appellant did not provide a meaningful response. In essence, he asked me to reconsider his case but did not engage with the proposition that the primary judge had taken his submissions into account, contrary to the allegation made in the first ground of appeal.

26    Grounds 2 and 3 of the appeal proceed on the same misunderstanding to which the primary judge referred, which was also evident in the appellant’s oral submissions in this appeal. As the Minister submitted, the issue for the Tribunal was whether the spousal relationship (the fact or circumstance that was the basis for the grant of the visa) no longer existed. In order for it to continue to exist, according to the Act, there needed to be a mutual commitment to a shared life as husband and wife, to the exclusion of all others. The relationship needed to be genuine and continuing. The couple needed to live together or not live separately and apart on a permanent basis. It is not sufficient for the appellant to have avoided divorce. The information provided by Ms Kaur, and the appellant himself at the Tribunal hearing, provided an evidentiary basis for the Tribunal’s findings.

27    Ground 4 of the appeal is, as the Minister submitted, no more than a plea that this Court reach a different conclusion in relation to the appellant’s application for judicial review. It reveals no error in the Circuit Court judgment.

Disposition

28    The grounds of appeal fail. The appeal will be dismissed with costs.

Associate:    

Dated:    20 February 2019