FEDERAL COURT OF AUSTRALIA

Hunjan v Minister for Home Affairs (No 2) [2019] FCA 732

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellant appeals from a decision of the Federal Circuit Court of Australia (FCC) wherein his application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) was refused. The Tribunal had confirmed a decision of a delegate of the Minister for Immigration on 5 September 2013 to refuse to grant the appellant a Partner (Residence) (Class BS) Visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

2    The appellant is an Indian national and citizen. He arrived in Australia on 7 July 2009 on a Student (Temporary) (Class TU) Visa which expired on 15 June 2011. On 23 March 2012 he applied for a Partner (Temporary) (Class UK) Subclass 820 Visa (the temporary visa) and a Partner (Residence) (Class BS) Subclass 801 Visa (the permanent visa). Those applications were founded upon his assertion that he was in a spousal relationship with Ms Claudette Vera Kay. Those applications were made together purposefully because the appellant could not apply for a permanent visa if he did not hold or had not held a temporary visa.

3    On 5 September 2013 a delegate of the Minster refused to grant the appellant the temporary visa and the permanent visa. The basis of that decision was that the delegate was not satisfied that the appellant and the sponsor were ever in a genuine spousal relationship. Consequently, the appellant did not satisfy the requirements of cl 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth). As the appellant was not the holder of a temporary visa he could not satisfy the requirements of cl 801.221(2) of the Schedule 2 which was a precondition to the granting of a permanent visa and, accordingly, the delegate also refused to grant the permanent visa.

4    A number of steps were taken following the rejection of the appellant’s application and they are succinctly set out at [4] to [7] of the respondent’s submissions as follows:

4.    The Appellant sought review by the (then) Migration Review Tribunal of the decision to refuse to grant the Temporary Visa. On 29 April 2015, the Tribunal affirmed the delegate’s decision to refuse to grant the Temporary Visa (AB 194-206). The Appellant sought judicial review of this Tribunal decision, but was unsuccessful: see Hunjan v Minister for Immigration and Border Protection [2015] FCCA 2417. The Appellant then applied for an extension of time to appeal that decision, but was again unsuccessful: see Hunjan v Minister for Immigration and Border Protection [2015] FCA 1340.

5.     On 11 April 2016, the Department of Immigration and Border Protection re-notified the Appellant of the decision to refuse to grant the Permanent Visa (ie. but not the Temporary Visa – which had been the subject of proceedings in the Tribunal, the Circuit Court and this Court) (AB 210-213).

6.     On 18 November 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the Permanent Visa (AB 216-227). On 16 June 2017, the Circuit Court set aside that decision, by consent. That was because the Tribunal had failed to correctly identify and determine the application for review that was before it – being an application seeking review of the decision to refuse to grant the Permanent Visa (AB 228). The Tribunal had also failed to disclose the existence of two certificates made under s 375A of the Act (AB 229).

7.     On 1 December 2017, the Tribunal again affirmed the delegate’s decision not to grant the Permanent Visa (AB 242-245).

The Tribunal’s decision

5    The Tribunal identified the criterion relevant to its review as being cl 801.221 of the Migration Regulations which required that, in order for a permanent visa to be granted, the applicant for the same must either hold, or have held, a Subclass 820 Visa (being a temporary visa). The Tribunal noted that this requirement had been explained to the appellant at the hearing and that the evidence before the Tribunal indicated he did not, and had never held, such a temporary visa. This was conceded by him. The necessary consequence was that he did not satisfy cll 801.221(2)-(6) and (8) of the Migration Regulations. This meant he did not satisfy the criteria for the grant of a permanent visa and the Tribunal affirmed the delegate’s decision.

Decision of the FCC

6    The primary judge dismissed the appellant’s application for review. His Honour accepted that a pre-condition for the grant of a permanent visa was that the appellant held the temporary visa. As the appellant was not and had never been, the holder of a temporary visa it followed the Tribunal correctly concluded the appellant did not meet the criteria in cll 801.221(2)-(6) and (8). As a consequence his Honour found the Tribunal’s decision was “reasonable and proper” and was not lacking in evident and intelligible justification.

Argument in this Court

7    Despite directions requiring the filing and serving of written submissions the appellant has failed to do either. He attended at the Court today and explained his situation. He claimed that he had sought the assistance of solicitors, but that they had not appeared today. There is no need to go into that because on the material before the Court, the appeal cannot succeed.

8    The Notice of Appeal which the appellant apparently drew himself stated the following in various parts:

(a)    “AAT didn’t go through with facts”;

(b)    “Federal Circuit Court didn’t hear that either”;

(c)    “Kindly please investigate again as it’s not the right judgment. I am married for seven years now”.

Consideration

9    As the Minister correctly identifies, the exhortation by the appellant for this Court to investigate the circumstances of the case again is inappropriate. Such a ground is no more than an assertion of the appellant’s disagreement with the Tribunal’s conclusion that he did not satisfy the criteria for the visa. That, of course, is not a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 [5] per Gleeson CJ.

10    The Minister further submits that the Tribunal’s decision is obviously correct. There is force in that submission. Clause 801.221 imposed a mandatory criterion for the grant of the permanent visa, being that the applicant for the same held, or had held, a temporary visa. In this case the appellant did not satisfy that criterion and he conceded to the Tribunal that such was the case. It followed that the Tribunal could not lawfully make a decision in his favour. The Tribunal was correct to affirm the delegate’s decision.

11    It ought be observed that the circumstances of this case were somewhat confusing. The initial refusal to grant the visa was the subject of a review application to the Tribunal and an application to review to the FCC as well as an appeal to this Court. Whilst they were unsuccessful, the notification of the refusal to grant the permanent visa had to reoccur. That might have given the appellant the impression he was entitled to re-agitation of the merits. Whilst that might have been the case had he been able to satisfy the statutory pre-conditions, he was not able to do so, and the Tribunal correctly upheld the delegate’s decision.

12    It follows that, on the appellant’s own concession, he cannot satisfy cl 801.221 and, consequently cannot satisfy the criteria for a permanent visa. The primary judge was correct in dismissing the application for review.

Conclusion

13    It necessary follows that the appeal to this Court must be dismissed. There is no reason why the costs of the appeal ought not follow the event. The appellant must pay the first respondent’s costs of the appeal.

Associate:    

Dated:    22 May 2019