Federal Court of Australia

Siddiqui v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 154

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal, to be agreed or assessed.

3.    The First Respondent’s name be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal from orders made by the Federal Circuit Court on 14 May 2020: Siddiqui v Minister for Immigration [2020] FCCA 1243. The appeal concerns the failure of the Appellant to secure the grant to him of a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa based on his relationship with his wife, Ms Yuni Lay. The initial application was refused by a delegate of the Minister and this was affirmed on review by the Administrative Appeals Tribunal (‘Tribunal’). However, the Tribunal’s decision was set aside by the Federal Circuit Court who ordered the Tribunal to determine the matter again. When it did so, it again affirmed the original decision of the delegate. Subsequently, the Appellant sought judicial review of that decision in the Federal Circuit Court. That Court dismissed the application and it is from those orders that the Appellant now appeals.

2    The basic problem with which the Appellant has been contending is his inability to satisfy two requirements for the grant of the Partner (Temporary) (Class UK) (Subclass 820) visa (consideration of the second visa may be omitted since it could only be granted if the first were granted). The first requirement was that at the time of his application he should have held a substantive visa at some point within the previous 28 days: cl 820.211(2)(d)(ii) of Sch 2 of the Migration Regulations 1994 (Cth) (‘Regulations’). It is not in dispute that he did not do so. It remained possible to issue the visa if the delegate (or, on review, the Tribunal) thought there were ‘compelling reasons for not applying’ the 28 day requirement. Before the Tribunal the question was therefore whether the Appellant had demonstrated to its satisfaction the existence of such compelling reasons.

3    The second requirement was that he should not have any outstanding debts to the Commonwealth unless the Minister was satisfied that appropriate arrangements had been made for payment: Public Interest Criterion 4004 in Pt 1 of Sch 4 of the Regulations.

4    The Tribunal was not satisfied that either of these requirements had been met. It did not think there were compelling circumstances and it noted that the Appellant had an outstanding debt to the Commonwealth of more than $12,000. Although the Appellant provided the Tribunal with an application by him to the Department for an arrangement to pay the amount owing this was done on the Friday prior to the hearing in the Tribunal on Monday 24 October 2016 and, as at the date of its decision, there was no evidence that the Department had acceded to such an arrangement.

5    In the Federal Circuit Court, the Appellant advanced the following grounds in support of his application for judicial review:

1.    Tribunal didn’t acknowledge the matter in the right way.

2.    Last time they did the mistake on the matter about my family circumstances.

3.    Tribunal failed to acknowledge that I made an offer that I made arrangement to pay $13,000 debt.

4.    Tribunal made a mistake and didn’t even consider that I got a baby girl.

6    Grounds 1 and 2 did not disclose viable grounds of judicial review. The Court rejected Ground 3 at [24] and [26]-[27] on the basis that the Tribunal had in fact considered the proposed debt arrangement at [38] and [51]-[53] of its reasons. The Court rejected Ground 4 at [24]-[25] and [27] on the basis that it was open to the Tribunal not to accept that the Appellant had had a baby given the absence of any evidence. This reasoning appears unimpeachable.

7    In this Court, the Appellant advanced these grounds of appeal:

1.    I had paid around $8500 debt to commonwealth which tribunal failed to consider.

2.    My wife was pregnant at that time so ethically and morally wasn’t a right thing, to abandon her and go offshore to lodge my partner visa application.

3.    I was also nursing her because of her pregnancy also providing financial support as she was not working at that time.

8    In addition to these three matters the Appellant also submitted in writing before the hearing of the appeal that he had now paid $9,520 of his debt. It appears that his total debt was $20,291 when one brings to account the costs orders in the Court below. But even if that were not so, $9,520 is still less than $12,000 and the Appellant, even on that view, remains indebted to the Commonwealth. Whilst the Appellant is to be commended for making repayments, the problem remains that the debt remains outstanding and there is no evidence of an arrangement for payment. As such, the Appellant is not eligible for a visa. Consequently, regardless of how one might conceptualise Ground 1 it can lead nowhere since the Appellant remains ineligible.

9    As to Ground 2, this explanation for why the Appellant did not go offshore to lodge a visa application (which would have bypassed the 28 day requirement) might conceivably be relevant to the question before the Tribunal of whether there were compelling reasons to dispense with the 28 day requirement. However, the place for this to be put was the Tribunal and not the Federal Court on appeal from the Federal Circuit Court. The same may be said of Ground 3.

10    By way of submission advanced before the hearing of the appeal, the Appellant also submitted that he had been unable to go offshore to apply for the visa due to the COVID-19 travel restrictions which were in place. However, this makes no sense. The original decision was made by the delegate on 13 August 2015. The second Tribunal proceeding was determined on 25 October 2016. On any view, the time for the Appellant to go offshore to apply for the visa was many years before 2020 when the COVID-19 travel restrictions were in place. An allied submission that it would have been unreasonable for him to return to India to lodge the application due to the risk that COVID-19 posed to him as an asthmatic in what he claims was a COVID-19 ridden India, must be rejected for the same reason.

11    In those circumstances, the Appellant’s appeal does not demonstrate any error in the primary judgment. The appeal must be dismissed with costs. The name of the First Respondent should be changed to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

Associate:

Dated:    2 March 2023