Kumar v Minister for Immigration and Border Protection [2017] FCA 933

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2017] FCA 933 Appeal from: Kumar v Minister for Immigration & Anor [2017] FCCA 641

File number: NSD 531 of 2017

Judge: NORTH J

Date of judgment: 3 August 2017

Legislation: Migration Regulations 1994 (Cth)

Date of hearing: 3 August 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 16

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondents: Mr L Leerdam of DLA Piper

ORDERS NSD 531 of 2017

BETWEEN: AMITESH KUMAR Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL Second Respondent

JUDGE: NORTH J DATE OF ORDER: 3 AUGUST 2017

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J: 1 Before the Court is an application for leave to appeal from an order made by the Federal Circuit Court on 10 March 2017. The Federal Circuit Court dismissed an application for reinstatement of an application for review brought by the applicant. The application for review was dismissed on 23 February 2017 when the applicant failed to appear at a call-over. 2 The application for review was brought in respect of a decision made by the Administrative Appeals Tribunal on 19 May 2016, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa. 3 The applicant is a citizen of Fiji born on 24 January 1989. 4 On 30 June 2014, he applied for a partner visa based on his relationship with a sponsor who was an Australian citizen, whom he married on 18 October 2012. 5 On 18 February 2015, the sponsor withdrew her sponsorship. 6 On 19 May 2016, at the hearing before the Tribunal, the applicant gave evidence that the relationship with the sponsor had ended. Consequently, the Tribunal found that that spousal relationship no longer existed. As a result, the criterion for the grant of a partner visa was not made out pursuant to cl 820.221 of Sch 2 of the Migration Regulations 1994 (Cth). 7 On 22 June 2016, the applicant sought judicial review of the decision of the Tribunal. The application was listed for call-over on 23 February 2017. The applicant did not appear. As a result, the application was dismissed. 8 On 27 February 2017, the applicant filed an application to set aside the order dismissing the application for review. 9 On 10 March 2017, the Federal Circuit Court dismissed the application to set aside the orders made on 23 February 2017. The Federal Circuit Court accepted that the applicant had confused the date of the call-over and that there was an acceptable reason for not attending. However, the Federal Circuit Court held that there was not a sufficiently arguable case to justify setting aside the order made on 23 February 2017. The Federal Circuit Court explained: 10. The Tribunal noted that there was no evidence that there continued to be a mutual commitment to the relationship by the applicant or his sponsor. For those reasons, the Tribunal found that the applicant was not the spouse of his sponsor. 11. There are exceptions in the criteria that apply in certain circumstances where the spousal relationship is no longer in existence at the time of the decision. The Tribunal dealt with each of those and found that those exceptions did not apply. For those reasons, the Tribunal was not satisfied that the criteria for the visa were met. Conclusion 12. I cannot see any error in the way in which the Tribunal conducted its review; in particular in the findings that it made. Ultimately, it was the applicant's own evidence that satisfied the Tribunal that he was no longer in a relationship and therefore that the criteria for the grant of the visa could not be met. 13. Having reviewed the material, and, in particular the decision of the Tribunal, I am not satisfied that there is a sufficiently arguable case to warrant an order reinstating the matter pursuant to r.16.05, and for that reason the application will be dismissed. 10 On 11 April 2017, the applicant filed an application for leave to appeal against the orders made on 10 March 2017. The grounds of the application were: (1) Judge Smith did not look or handle my case properly. (2) I feel I have not be fairly treated due to the harm to my case. (3) I would like to have my case fully looked at as the tribunal did not take the right to look at my needs base to my application. 11 On the application for leave to appeal two issues arose. First, whether the order appealed from is attended by sufficient doubt as to warrant being heard by an appellate Court. Second, whether there would be an injustice to the applicant if the judgment below were not subject to leave to appeal. 12 The Federal Circuit Court exercised a discretionary power when it refused to set aside the orders made on 23 February 2017. A factor relevant to the exercise of that discretion was whether the applicant had a reasonably arguable prospect of success on the appeal. 13 The Federal Circuit Court held that there was not a reasonably arguable prospect of success. It would be sufficient to dismiss this application, if that view were merely a view that was open to the Federal Circuit Court. But not only was that view open, it was unarguably correct. 14 The applicant appeared in person at the hearing for leave to appeal and explained the basis for the application as he saw it. He was clearly aggrieved by the circumstances in which he found himself. He explained that the sponsor had treated him most unfairly and that she had left him after one year of marriage. He also explained how he had given her a large sum of money in the course of their relationship. He said that the ending of the relationship was through no fault of his. He said there was nothing for him in Fiji because his parents had passed away. 15 These are all factors which undoubtedly cause sympathy for the applicant. However, they do not go to any legal issue raised by the proceeding. The issue addressed by the Tribunal was whether the applicant fell within the category available for this type of visa under the Regulations. Once the applicant explained to the Tribunal that his spousal relationship had ended, he was unable to comply with the requirement of cl 820.221 of Sch 2 of the Regulations. 16 The circumstances of the applicant are unfortunate. However, they do not answer the problem he faces, namely, that he does not fall within the requirements of the Regulations. It follows that the application for leave to appeal must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.