Gill v Minister for Home Affairs

[2018] FCCA 3687

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3687

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 375A, 376

Migration Regulations 1994 (Cth), reg.1.15A

Applicant: HARDEEP SINGH GILL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 123 of 2018

Judgment of: Judge Vasta

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Perth

Delivered on: 29 November 2018

REPRESENTATION

Solicitors for the Applicant: Soul Legal

Counsel for the Respondent: Ms S. Oliver

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the oral application for an adjournment of these proceedings brought by the Applicant is refused.

2. That the Application filed 6 March 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 123 of 2018

HARDEEP SINGH GILL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Application for Adjournment

1. On 6 March 2018 the Applicant, Hardeep Singh Gill, filed an application for review of a decision of the Administrative Appeals Tribunal (“the AAT”) that affirmed a decision not to grant him a visa.  The matter, as a first court date, came before Registrar Herrmann on 9 May 2018.  On that day the Registrar made the usual orders that are made on first court dates for these matters, such that he ordered that: 

   a)by 31 May 2018, the green book documents would be served on the applicant;

   b)by 28 June 2018 the applicant shall file and serve any amended application, that he would have any affidavit containing any additional material;

   c)On 26 July the first respondent shall file and serve any other material;

   d)by 4 pm 35 days prior to the hearing the applicant shall file and serve written submissions and

   e)by 21 days prior to the hearing the first respondent shall file and serve written submissions. 

2. The application was listed for final hearing before a judge on 29 November 2018 at 10.15 am.

3. After those orders were made, the Respondent Minister served on the Applicant the Court book bundle.  The Applicant has given an affidavit saying that he tried to get a lawyer to help him with the appeal but without money, no lawyer was prepared to help. 

4. The Applicant said he called five or six migration lawyers through searches that he did on the internet but none of them were interested in taking on his matter.  He said, in June 2018, a friend introduced him to Brian Nugawela, a barrister.  He said that Mr Nugawela had a look at the material and told him that there “may have been a miscarriage of justice”. 

5. The Applicant said that Mr Nugawela advised him that he needed to see more evidence, that he would need to instruct Mr Nugawela through a firm of lawyers and that he would need to deposit the sum of $12,000.00 for legal fees through that firm.

6. The Applicant says that part of the reason Mr Nugawela said he could not act directly for him, was that he had to obtain numerous documents in order to prepare the affidavit that this Court ordered that the Applicant file.  The Applicant said that he told Mr Nugawela there were some documents he lodged with the Department of Home Affairs and with the AAT but they were not reproduced in the court book.  

7. The Applicant, I pause to note, did not tell this Court in the affidavit what those records were.  He said that Mr Nugawela told him that Family Court documents, police records concerning restraining orders and hospital records concerning family violence may also be relevant for the Court deciding jurisdictional facts.

8. What his affidavit goes on to further say is this; that on 27 June 2018 the Applicant wrote to the solicitors representing the Minister in these terms:

   Good afternoon, respected sir.  I am writing this letter to you regarding two weeks’ extension as court ordered I have to serve amended application by 4 pm on 28 June 2018.  I just appointed Brain Nugawela, lawyer, to assist with my case.  He will contact you next week.  Please, I request you just need two weeks’ time to prepare me all my the relevant documents.  Kind regards, Hardeep Gill.

9. Ms Tattersall, who was the solicitor in charge of this matter, wrote to Mr Gill on 28 June, the next day, at 10.18 am in these terms:

   Dear Mr Gill.  The Minister consents to your request for an extension of time to file further material.  I have attached consent orders for your consideration and execution.

10. Mr Gill sent that email at 11.47 am on to Mr Nugawela.  Mr Nugawela then, at 1.21 pm, wrote to Ms Tattersall saying that he was approached last week with a view to inquiring whether he would be able to assist in the above judicial review proceedings.  At the same time he was given a folder of selected materials.  He said he was only able to review those materials this morning and spoke for the first time to the Applicant.  He said that he observed procedural directions were previously agreed on 9 May 2018 that obliged the Applicant to file certain documents by today.  Mr Nugawela said:

    4. I do not have a copy of the application for judicial review, nor the green book (see Order 1). Further, in my discussions with Mr Singh this morning, he says he does not have a copy of the green book either.

    5. Do you know if a transcript of the AAT proceedings below has been obtained/or is readily available?

    6. In the above circumstances, I would be grateful if your client would consider agreeing to a further enlargement of time until say 6 weeks after he avails himself of the Green Book and transcript of the proceedings below? This will enable me to provide him with considered advice (and representation if necessary) in relation to these judicial review proceedings. 

    Please do not hesitate to telephone me…

11. Ms Tattersall replied on 2 July:

    Dear Mr Nugawela. 

    I would be happy to discuss the matter with you further once you are either on the record or the applicant has provided his consent.

12. The Applicant then wrote to both Ms Tattersall and Mr Nugawela in these terms on 3 July:

    dear miss,  I agree to uou contacting mr nugawela please.(sic)

13. Ms Tattersall, on 5 July, wrote to Mr Nugawela:

    Further to the below, I confirm that:

    -The court book was served on the applicant by post on 31 May 2018 . An electronic copy was provided on 3 July 2018 and I have attached a further electronic copy for your records. 

    -No transcript of the Tribunal proceedings is available.  If the applicant wishes to arrange for a transcript to be prepared a copy of the audio recording of the hearing can be provided upon request.

    - In the event the applicant seeks a further extension of time please provide our office with proposed consent orders and I will seek instructions.

14. It doesn’t seem that anything else was then heard from the Applicant, except that the proposed consent orders that Ms Tattersall spoke about were sent to the Chambers of Judge Lucev who, in Chambers on 16 July, extended the time for that material to be filed.  Nothing more was heard by this Court, or by the Minister, from either Mr Nugawela or anyone else purporting to represent the Applicant. 

15. On 9 August 2018, the Minister filed an affidavit of Georgina Roberta Ellis which annexed the transcript of the first hearing and on 8 November, the Minister filed an affidavit of Tina Pebbles which annexed a transcript of the second tribunal hearing, which is the one for which a review was requested. 

16. The Minister filed their submissions on 8 November as well, in accordance with the orders of Registrar Herrmann that were not disturbed by His Honour Judge Lucev.

17. On 15 November, the Applicant had paid money into the trust account of the solicitors, Soul Legal.  The principal, Mr Kevin Wong, who has appeared before me today, wrote to Ms Tattersall on 15 November in these terms:

    We write to advise that we have been retained to represent the abovementioned applicant in relation to the Federal Circuit Court proceedings. 

    We note it is listed for hearing on 29 November 2018 at 10.15 am. 

    The applicant has been trying to borrow sufficient funds to engage a lawyer, and has only now managed to secure a sufficient amount to retain us. 

    At this stage, we do not have all the papers that would allow us to fairly and reasonably represent him at the hearing.  We further understand he was required to file affidavit evidence which needs to be compiled.  Counsel also has another engagement on 29 November 2018 when the matter is listed. 

    We write to inquire if your client will consent to the hearing being adjourned to a date after January 2019 to allow the Applicant to have a fair hearing.  If so, can we agree to some programming orders?

    We look forward to hearing you.

18. Ms Tattersall replied to Mr Wong in writing:

    I confirm that the Minister opposes any application for adjournment. 

    I note this matter has been on foot since March 2018 and no evidence has been provided in relation to any attempts by the applicant to engage legal representation.

19. The Applicant then filed an affidavit, of which I have referred and quoted earlier in these Reasons, but his evidence in that affidavit is that he spoke to Mr Wong in July 2018 but he could not get on the record until the Applicant deposited $12,000.00 in fees.  He was promised by family and friends that he would get that money within three weeks but it didn’t happen.  He said that by 16 November 2018, he had deposited $11,500.00 into the trust account of Mr Wong.  He said that he was given a costs agreement and general authority to sign, which he did, and he returned that on 15 November 2018.  He writes in his affidavit:

    23. I was told by Mr Wong, however, that counsel, Mr Nugawela is in trial between 27 and 29 November 2018, and has been preparing for another 16 day trial starting 3 December 2018.  He is busy on a daily basis, and in as much as he is prepared to help, he cannot do my hearing this year. 

    24. I am informed by Mr Wong that he wrote to Sparke Helmore on 15 November 2018 seeking agreement in relation to an adjournment, but have been told that the Minister opposes any application for adjournment.

20. And that seems to be the relevant parts of that affidavit. 

21. Mr Wong has appeared today asking for an adjournment.  He claimed that he needed transcripts of the proceedings.  I hadn’t realised at the time of the discussion that those transcripts were actually on file and had been on file for some time and those transcripts had actually been given to the Applicant. 

22. Mr Wong spoke of a need to get further information.  That information was information that would not have been before the Tribunal anyway.  It has not been shown to me how such material, being new material, would be able to be of any relevance to a matter that is a review matter rather than an appeal.

23. Now, given the history of this matter, I cannot find any reason to adjourn today’s proceedings.  It is trite to say that the Court must act in the interests of justice and fairly, but acting fairly means acting fairly not just to the Applicant but also to the community at large. 

24. This is a Court that is very much a high volume/high turnover Court.  It has many, many matters pending.  There is a public outcry that matters in this Court are being clogged and not being heard expeditiously.  There are calls, almost daily, by various legal groups for the Courts to dispose of matters as expeditiously as they can and if they can’t that there should be more resources given.

25. This matter has been set down since Registrar Herrmann set it down on 9 May 2018.  The reasons for the adjournment really boil down to the availability of counsel.  That is not sufficient, in my view, to justify an adjournment.  There is no more material.  The matter is a fairly simple matter.  The Respondent is ready to proceed.  The Applicant has known that the Respondent is ready to proceed.  There are no matters, such as transcripts, that have not been available to the Applicant for at least the last three weeks. 

26. In all of those circumstances, the matter should proceed today and I refuse the application for adjournment.

Substantive Application

1. This matter has had a fairly long complicated history.  In 2014, the Applicant who is a citizen of India, lodged an application for a partner visa. 

2. What he had said was that he and his sponsor, a woman by the name of Helene Jean Gill, had married on 7 December 2013 and were blessed with a daughter arriving on 2 May 2014.   

3. It would seem that the relationship with the sponsor had broken down even though there was some inconsistent evidence as to whether they had reconciled in October 2016 and were still in a relationship.

4. The question as to whether the Applicant fulfilled the criteria for a visa rested upon an examination by the delegate, and afterwards by the Tribunal, of the definition of spouse under the Migration Act 1958 (Cth) (“the Act”) and the categories under reg.1.15A of the Migration Regulations 1994 (Cth).

5. To this point, the Applicant was asked to fill in a form that gave answers to a number of questions.  This statement was received by the department on 23 July 2014.  In it was the original part that was given to him by the department.  It had a number of questions and then he wrote his responses.  It was headed:

   Evidence of your relationship with your spouse.

   Saying:

   The decision-maker must be satisfied that you and your spouse are validly married under Australian law, have a mutual commitment to a shared life to the exclusion of all others, have a relationship that is genuine and continuing, live together...

   And then a number of other matters going to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment to each other. 

6. In that latter category, the final aspect that must be looked at is whether the Applicant and the spouse see the relationship as a long term relationship.  The answer written to that question and then submitted to the department was this:

   We see our marriage as long lasting.  Both our families have made long term commitments and have been good role models for us so we are taking that and moving on with our lives.  We are planning for the future and in due course we hope to move to a better home or apartment where we can bring up our daughter.  We are supported by both our parents (mine and Helene’s).  I speak with my parents on a very frequent basis as well as using Facebook to communicate with them.  I Skype with my brother on a very frequent basis as well. 

7. The sentence that is important in this review is the sentence in the middle of that:

   We are supported by both our parents (mine and Helene’s). 

   That question is in answer to an aspect of the matters under reg.1.15A that the delegate needs to look at.

8. The delegate ended up not granting the visa and I will go through the reasons in a second.  The Applicant wanted that decision reviewed by the Tribunal.  In a hearing on 21 February 2017, the Applicant attended, he gave evidence and his wife gave evidence.  It seems his parents gave evidence and notwithstanding that, the Tribunal still found that the decision ought be affirmed.

9. The Applicant asked this Court to review the matter. It became evident when the Minister reviewed the matter that the AAT had not divulged the existence of certificates under s.375A or s.376. The Minister, by consent, asked that writs issue and that the matter be remitted back to the AAT. This was done by order of His Honour Lucev J.

10. The matter then returned and a second hearing occurred in January 2018. In that hearing the question before the Tribunal was one as to whether a clause of the Act had been breached. That clause is a clause attached to Migration Regulations 1994 (Cth) Schedule 4, 4020(1) which reads as follows:

    (1) There is no evidence before the Minister that the applicant has given, or caused to be given to the Minister, an officer, the Tribunal during a review of a Part 5-reviewable decision, a relevant assessing authority, or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a) the application for the visa;

    (b) a visa that the applicant held in the period of 12 months before the application was made.

11. If it is that a person has breached this and, in this case, given information that is false or misleading in a material particular in relation to the application for the visa, 4020 (4) says:

    (4) The Minister may waive the requirements of any or all paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a) compelling circumstances that affect the interests of Australia; or

    (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa.

12. In other words, if it is shown that the Minister or the Tribunal is satisfied that someone who is asking for a visa has given false or misleading information in a material particular in relation to the application of a visa, then the default conclusion is that the visa should not be given.

13. However, that can be waived if there are compassionate or compelling circumstances that affect the interests of an Australian citizen that would justify the granting of the visa.

14. In this case, what is alleged is that last statement that “We are supported by both our parents” was false and misleading.  This is because the Tribunal had before it the notes of a departmental visit by departmental officers on 9 March 2016 to the residence of the Applicant’s parents in India.  According to the notes made in the site visit is this observation and this is reproduced at paragraph 29: 

    The officers recorded the applicant’s parents as stating that the applicant was not married and that he had no children. 

15. The notes speak of the father of the Applicant recalling a number of details about the Applicant including his age, where he lived and that he first came to Australia for the purpose of studying.  The officers took photos of the house and had photos taken with the parents it would seem. 

16. That information totally contradicts the information that was given on 23 July 2014 that the Applicant and his wife were supported by both their parents. 

17. This was put to the Applicant in the hearing; both the first hearing and the second hearing.  He claimed that the departmental officers had come to his parent’s house but his parents were very suspicious of this and very worried.  The Applicant then phoned the department and phoned the departmental office in India as well and made queries or complaints about this conduct. 

18. He had a statutory declaration where he said that his parents were, especially his father because his father is suffering some form of dementia, saying some things that were not exactly true and that the father then also had a statutory declaration to say that he did know that the Applicant was married and so on.

19. It seems that in the first hearing the father and the mother did give evidence electronically as well and gave evidence to the effect that they knew that the Applicant was married.  Notwithstanding that evidence, which the second Tribunal also had, the second Tribunal came to this conclusion at paragraph 50:

    The tribunal was satisfied that the applicant provided information that was false or misleading in a material particular when he stated that his parents supported the marriage.  The tribunal was satisfied the applicant’s parents were not aware of the marriage at the time of the site visit.  The tribunal places significant weight on the details contained in the notes of the site visit and on the photos that were taken, both of which do not support the applicant’s contention that the officers were in his parent’s house without permission and that they were in a rush.

1. The Tribunal also says this:

   The tribunal also takes into account the applicant’s admission of being untruthful on multiple occasions including being untruthful to the department. The tribunal decided that the false and misleading information related to criteria of the visa that the Minister may consider being whether the parties are in a genuine and continuing spousal relationship set out in section 5F of the Act taking into account the prescribed factors for consideration as provided by rule – sorry, by regulation 1.15A. These include whether the parties represent themselves to others as being married to each other. The tribunal decided the applicant did not meet PIC4020, subsection (1).

2. As I have previously explained, that even if the Applicant does give false or misleading information, if there are compelling or compassionate circumstances that affect the interests of an Australian citizen then this “default position” can be waived but those compelling or compassionate circumstances need to justify the granting of the visa. 

3. What the Applicant had said is that he has the child, which I’ve already spoken of, and, that if it is that he is going to be removed from Australia, that his daughter will grow up without him in the same country. 

4. The current situation between the Applicant and his wife is that they are divorced but they are currently involved in litigation in the Family Court of Western Australia regarding parenting orders in relation to the daughter. 

5. It seems on the evidence that the Applicant does have an order that allows him to have supervised time with his daughter.  However, because he has no money he is not able to afford those supervised visits he has not actually had time with his daughter. 

6. There are allegations of violence in the relationship and the Court has appointed an Independent Children’s Lawyer.

7. The Tribunal looked at all of the material that the Applicant had provided. The Tribunal also had information from the Family Court file. Pursuant to s.359AA, the Tribunal put that material to the Applicant which referred to the ex-wife’s claims of family violence. The Applicant answered those concerns of the Tribunal. The Applicant said that he cannot provide financial support for his daughter because he is not working.

8. The Tribunal said, at paragraph 79, that they accept that the Australian citizen child is the child of the Applicant and the Tribunal considered the effect on the child in consideration of the decision whether to waive the PIC4020 criteria. 

9. The Tribunal said that they took into account the family networks in Australia. 

10. The Tribunal took into account Ms Gill’s deficiencies and the fact that her parents are, in effect, her carers and that the parents are involved in Ms Gill’s life to a significant extent.  The parents are joint preliminary administrators of her estate. The Tribunal found that there is nothing in regard to Ms Gill that would provide compelling, or even compassionate reasons, why the waiver should be granted and to justify the visa. 

11. The only matter is the relationship the Applicant would have with the daughter.

12. At paragraph 84 the Tribunal said :

    84. The Tribunal decided that there are compassionate or compelling circumstances in the present case. The applicant and his daughter are likely to endure a level of emotional hardship if they are not living in the same country. It is possible to develop and maintain an emotional bond from a distance and through regular visitation but the relationship may not be as close as it otherwise would be. 

13. The question then was whether those compassionate or compelling circumstances were sufficient to justify the granting of the visa and the waiving of PIC4020. 

14. At paragraph 86 the tribunal said this:

    86. The Tribunal considered the Applicant’s admission of untruthfulness on multiple occasions.  The Tribunal had regard to the first Tribunal’s reference to the applicant providing misleading information even as that Tribunal was reviewing the delegate’s findings of the provision of misleading information in the applicant’s written statement of 23 July 2014.  The first Tribunal referred to the applicant perpetrating another falsehood before it in a joint statutory declaration with Ms Gill dated 23 January 2017 in which he asserted that the parties had reconciled and that Ms Gill’s parents were aware of the reconciliation.  In taking evidence from Ms Gill’s parents, the first Tribunal noted they appeared to be shocked at the prospect that the parties had reconciled and they both denied knowledge of the reconciliation.  This was further supported in Ms Gill’s post-hearing statement that she had not advised her parents of the reconciliation.  The applicant told the tribunal that Ms Gill told him that her parents were aware of the reconciliation.  Given that the first Tribunal hearing was on 21 February 2017 and the applicant asserted the reconciliation had occurred in September/October 2016, the Tribunal does not accept the applicant’s explanation and considers it likely he was aware Ms Gill’s parents did not know of the reconciliation.

    87. The Tribunal has taken into account the tumultuous nature of the applicant’s relationship with Ms Gill, the mutual allegations of family violence, the concern and involvement of external parties, such as Ms Gill’s parents and the former ICL.  The tribunal has weighed the nature and the extent of the fraud. Based on these considerations and the evidence before it, the Tribunal does not consider that the compassionate or compelling circumstances that affect the interests of an Australian citizen child in this matter justify the granting of the visa.

15. The Tribunal therefore affirmed the decision.

16. The Applicant, when he filed this application on 6 March 2018, had but one ground of review and that was that it was simply written:

    Breach of best interests of child. 

17. As I have earlier given reasons in not granting an adjournment, Mr Wong has appeared here today for the Applicant.  His argument is, firstly, on the 4020 point.  Firstly, that the statement was not materially relevant to a matter that had to be considered by the Tribunal or the delegate. 

18. Clearly there is no merit in that submission at all because it was in direct answer to the aspects that have to be considered pursuant to reg.1.15A and, as the authorities have said, all of those matters need to be considered. So any information given is, therefore, relevant.

19. The second aspect is that the Tribunal has, in effect, changed the evidence.  Whilst the statement made in the application was:

    We are supported by both our parents

    The way in which the AAT has phrased it is “the parents support marriage”.  There are some differences obviously to that. 

20. The question is whether or not there was false or misleading evidence or information given.  Whether the question is “we were supported by both our parents” or “the parents support the marriage”, the obvious statement that was made is that they, meaning both the Applicant and his wife, are supported by both their parents.  That means that the Applicant’s wife is supported by the Applicant’s parents.

21. If the Applicant’s parents do not know about the marriage at all such a statement can only be considered false or misleading. 

22. It matters not whether the AAT have referred to it properly, or whether they have referred to it incorrectly, as long as what it is that the Applicant has said has been identified which it clearly has.  In that respect there is no merit in the submission.

23. It was put that there is a huge gap in reasoning in saying that a discussion, that occurred overseas and information given, is able to be escalated to a point where it is the basis upon which a finding, that there has been false or misleading information given, has been made.  That gap it is submitted is too big a gap to have evolved from the simple information from the site visit.  I am of the view that there is no merit in that submission either. 

24. The assessment of the facts is for the AAT.  In this case, notwithstanding all of the evidence to the contrary that was submitted after the site visit, it is clear to me that the conclusion made by the Tribunal was one that was open on the evidence. Therefore, there has been no jurisdictional error.

25. The second aspect of the application, and the one that was foreshadowed in the originating application, is whether the best interests of the child have been served.  The question here really comes down to whether the compelling or compassionate circumstances as found by the Tribunal to exist are sufficient to justify the granting of the visa. 

26. The Applicant has said that, in effect, when one goes through all of that evidence, it is sufficient to justify the granting of the visa.  However, that is simply an impermissible merits review.  It may very well be that if I were in the shoes of the AAT that I may have found that such information justified the granting of the visa.  It may be that another Tribunal, differently constituted, would also find that it justified the granting of the visa. 

27. The fact is that this Tribunal did not find that it justified the granting of the visa.  The reasons for the non-justification of the granting of the visa were spelt out in paragraphs 86 and 87. It really amounts to this; when one looks at all of the circumstances the fact that the relationship, that will develop between father and daughter will now not be as close as it would otherwise be, is not sufficient to justify the granting of the visa. 

28. That conclusion was open on the evidence.  As has been said many times in these matters it is not whether the decision should have been made, but whether the decision that was made, could have been made.

29. In this matter, the decision that was made was one that could have been made; therefore there is no jurisdictional error. 

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  9 January 2019