Gill v Minister for Immigration

[2016] FCCA 3123

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3123

Catchwords:
MIGRATION – Review of an Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5F, 359A
Migration Regulations 1994 (Cth)

Applicant: SANDEEP KAUR GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1521 of 2016

Judgment of: Judge Driver

Hearing date: 2 December 2016

Delivered at: Sydney

Delivered on: 2 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr D McLaren of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1521 of 2016

SANDEEP KAUR GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Ms Gill, is the partner of an Australian citizen who she married and who sponsored her for a partner visa.  A delegate of the Minister declined to grant the visa, and Ms Gill sought review before the Tribunal.  The Tribunal affirmed the delegate’s decision on 1 June 2016, and Ms Gill now seeks review of that decision. 

2. Background facts relating to the visa application and the decision of the Tribunal on it are set out in written submissions filed on behalf of the Minister on 10 November 2016.   

3. On 3 March 2014, Ms Gill, a citizen of India, applied for a Class UK (Partner - Temporary) and Class BS (Partner - Residence) visa[1].  Ms Gill was sponsored by her husband, Cory John McRandal (the husband), who is an Australian citizen[2].

   [1] Court Book (CB) 1–74

   [2] see CB 8–17

4. On 4 March 2015, the delegate refused to grant the visa applicant a partner visa[3]. This was because the delegate found that Ms Gill did not satisfy paragraph 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because Ms Gill did not satisfy the definition of “spouse” in s.5F of the Migration Act 1958 (Cth) (Migration Act) with respect to her relationship with the sponsor. As the Class UK (Partner—Temporary) visa was refused, Ms Gill also failed to meet the requirements of subclauses 801.221(2), (2A), (3), (4), (5) and (6), and therefore the delegate refused Ms Gill’s application for a Class BS (Partner—Residence) visa.

   [3] CB 277–302

5. On 20 March 2015, Ms Gill applied to the Tribunal for review of the delegate's decision[4].  On 8 March 2016, the Tribunal wrote to Ms Gill, inviting her to attend a hearing scheduled for 26 April 2016[5].  Ms Gill responded, indicating that she would attend.  That response also indicated that her representative and the husband would attend[6].  On 26 April 2016, Ms Gill appeared at a Tribunal hearing[7].  The representative also attended the hearing, but the husband did not[8].  At the hearing Ms Gill stated that she had lost contact with the husband. She then stated that she had contacted him and he would be at the hearing. Later she requested time to provide records of attempting to report him as missing to the police[9].

   [4] CB 303–304

   [5] CB315–325

   [6] CB 327

   [7] CB 330

   [8] CB 330

   [9] CB 345 at [49]

6. On 27 April 2016, the Tribunal sent a letter to Ms Gill inviting her to comment on certain information relevant to the review[10]. That information was that Ms Gill and the husband provided statutory declarations in which two persons were named as being able to provide an oral declaration as to the nature of Ms Gill’s relationship with the husband.  At the hearing Ms Gill asked the Tribunal to consider the statutory declarations.  After the hearing the Tribunal attempted to contact the two persons.  The first named person's telephone number was disconnected, and the second named person denied knowledge of the relationship or even of Ms Gill herself.  The Tribunal observed that this information may cause it to find that the relationship was not a genuine spouse relationship, and also that Ms Gill was not a witness of credit.  The Tribunal invited Ms Gill’s response by 11 May 2016.  There is no record of Ms Gill providing a response to this letter.

   [10] CB 332–334

7. On 1 June 2016, the Tribunal affirmed the delegate's decision[11].

   [11] CB 340–348

The Tribunal decision

1. The Tribunal identified the issue in the case as being whether Ms Gill is the spouse of the sponsor[12]. The Tribunal noted that “spouse” is defined in s.5F of the Migration Act, and that the persons must satisfy paragraphs 5F(2)(a)–(d) of the Migration Act[13].  The Tribunal further noted that, in forming an opinion about these matters, regard must be had to all the circumstances of the relationship, including evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other, as set out in sub-regulation 1.15A(3) of the Regulations[14].

   [12] CB 341 at [7]

   [13] CB 341 at [9]

   [14] CB 341 at [9]

2. The Tribunal accepted that Ms Gill and the sponsor were married to each other under a marriage that is valid for the purposes of the Migration Act, as required by s.5F(2)(a) of the Migration Act[15]. In considering whether the other requirements for a spousal relationship were met, the Tribunal summarised the evidence given by Ms Gill at the hearing[16].  The Tribunal found that Ms Gill was not a credible witness[17].  The Tribunal noted that Ms Gill gave contradictory evidence, and her oral evidence did not accord with documents provided to the Minister’s Department and the Tribunal[18].

   [15] CB 342 at [10]

   [16] CB 342–344 at [12]–[39]

   [17] CB 344 at [40]

   [18] CB 344 at [40]

3. The Tribunal noted that Ms Gill’s representative urged the Tribunal to consider the statutory declarations provided by persons which were claimed to support Ms Gill’s evidence that she and the sponsor were in a genuine relationship. The Tribunal considered the statutory declarations, and attempted to contact the authors, but the first person's phone was disconnected. The Tribunal connected to the second person, who confirmed that he was the person named in the statutory declaration, but stated that he had no knowledge of the relationship between Ms Gill and sponsor. The Tribunal noted that this information was put to Ms Gill in a letter under s.359A of the Migration Act after the hearing, but that no response was received[19].  

   [19] CB 344–345 at [44]

4. The Tribunal stated that it had considered all of the evidence before it[20], including documents regarding a joint bank account, lease agreements, ledgers, utility bills and receipts, as well as the statements and oral evidence and the interview responses given by the sponsor to the Minister’s Department as set out in the decision record attached to the application for review[21]. The Tribunal also considered the photographs, statutory declarations and lodgement documents[22].

   [20] CB 345 at [45]

   [21] CB 345 at [46]

   [22] CB 345 at [47]

5. The Tribunal found, after considering the material before it, that the parties are not in a genuine relationship[23].  The Tribunal considered that this was confirmed by the sponsor not making himself available to the hearing[24].  The Tribunal accepted that the parties are known to each other, but found that given the evidence that was “inconsistent, non-corroborative, unpersuasive and implausible”, and that the documentary evidence was manufactured for the purpose of securing Ms Gill a visa to remain in Australia[25].  The Tribunal was therefore not satisfied that, at the time of the visa application or at the time of the decision, the parties were in a spousal relationship[26]. The Tribunal therefore found that Ms Gill did not satisfy paragraph 820.211(2)(a) or clause 820.221 of Schedule 2 to the Regulations[27].

   [23] CB 345 at [48]

   [24] CB 345 at [49]–[50]

   [25] CB 345 at [51]

   [26] CB 345 at [52]

   [27] CB 345 at [53]

The present proceedings

1. These proceedings began with a show cause application filed on 15 June 2016.  Ms Gill continues to rely upon that application.  The application contains seven grounds:

   1. Tribunal member did not allowed to submit more testimony and made jurisdictional omission and also did not properly consider the witness presented to AAT;

   2. Tribunal member error-ed by not properly considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer thus an error made by the AAT;

   3. Tribunal member did giver a chance to present witness and a fair hearing manner;

   4. Tribunal member did not attended the case and material produced before and after;

   5. The AAT made jurisdictional error in denying the application for Spouse Visa subclass 820 in failing to consider all the facts that I am in relationship for last 3 years and accepted my claims in fair manner

   6. AAT failed to accept witness statements and telephonic interview, Tribunal did not consider the current state that I am in relationship for last 3 years and accepted my claims in fair manner

   7. AAT failed to acknowledge the fact that Australia has protection obligations and accepted my claims in fair manner

   (errors in original)

2. Procedural orders were made in this matter on more than one occasion to prepare the case for a show cause hearing.  It was necessary, at the interlocutory stage, to deal with a subpoena issued at the instigation of Ms Gill, which I set aside. 

3. The matter was scheduled for hearing on 17 November 2016, but at that time Ms Gill provided a medical certificate certifying her illness and the hearing was adjourned to today.  Ms Gill sought a further adjournment orally today on the basis that she still did not feel comfortable and she wanted more time to prepare for the hearing.  I declined that application because of the terms of order 2 that I made on 17 November 2016 (which required any further adjournment application to be made by Application in a Case supported by an affidavit) and because I considered that Ms Gill had already had an adequate opportunity to prepare for the show cause hearing.  Ms Gill indicated that she wanted to gather additional documents, but it was not apparent what assistance those documents might have provided to her. 

4. I have before me as evidence the affidavit filed by Ms Gill on 15 June 2016, which annexes the decisions of the Minister’s delegate and the Tribunal.  The body of the affidavit contains two paragraphs in small font, which I treated as a submission. 

5. I also have before me as evidence the court book filed on 12 September 2016. 

6. Ms Gill denied receipt of the court book, which appeared to me to be plausible on the basis of a notice of change of address for service provided by Ms Gill on 15 August 2016.  It appears, from statements made at the bar table by the Minister’s solicitor, that the court book may have been sent to a previous address.  I nevertheless proceeded on the basis that Ms Gill was not unfairly disadvantaged in the absence of prior access to the documents in the court book because the only document of importance today was the Tribunal decision, which Ms Gill annexed to her own affidavit, and because the other documents in the court book would not have come as a surprise to her. 

7. I am unable to discern any arguable case of jurisdictional error either from the grounds in the application, the supporting affidavit or the court book.  Ms Gill drew attention to the fact that she had presented statements from two persons and had asked the Tribunal to contact them to verify their contents.  She submits that the Tribunal’s inability to contact the authors of those declarations might have affected the outcome. 

8. The Tribunal records at [44] of its reasons[28] that after the hearing conducted by the Tribunal and as urged by Ms Gill’s representative, it considered the statutory declarations which had been presented to it.  The Tribunal attempted to contact the first person; that person’s phone was disconnected.  The Tribunal then attempted to contact the second person, who answered his phone and confirmed he was the named person in the declaration; however, this person asserted that he did not know the visa applicant and was adamant that he had no knowledge of the relationship between the parties. 

   [28] CB 344

9. This information was put to Ms Gill via a s.359A letter and the Tribunal received no response. I put to Ms Gill that in the circumstances, it seemed to me that the Tribunal had done what it was asked and all that it could to attempt to verify the declarations presented to it and I saw no jurisdictional error in the Tribunal’s approach. Ms Gill had no further submission to make.

10. The Minister’s submissions otherwise deal with the grounds of review advanced.  I agree with those submissions. 

11. Aspects of the grounds appear, in substance, to invite the Court to engage in impermissible merits review. In particular, the contentions that the Tribunal did not “properly consider the witness presented” (Ground 1), that the Tribunal did not “attended the case and material produced before and after” (Ground 4), that the Tribunal erred in denying the visa in failing to consider that Ms Gill had been in a relationship for three years and did not accept her claims (Ground 5), and that the Tribunal did not accept Ms Gill’s claims in a fair manner (Ground 6) are all in the nature of requests for impermissible merits review.  These aspects of the grounds give rise to no arguable case of jurisdictional error in the Tribunal decision.

12. Read generously, it is possible to take aspects of Ms Gill’s grounds as contending that the Tribunal erred by denying her procedural fairness. This may be gleaned from her contentions that the Tribunal “did not allow the applicant to submit more testimony” (Ground 1), did not give a “fair hearing manner” (Ground 3), and did not accept the claims in a “fair manner” (Ground 5). There is no specification or particularisation of any contention that the Tribunal breached its procedural fairness obligations.

13. In my view, there is no arguable case that the Tribunal breached its procedural fairness obligations. The Tribunal did not take evidence from the husband because he did not attend the hearing and Ms Gill’s evidence was that he was missing[29].  The Tribunal's decision record demonstrates that it acceded to Ms Gill’s representative's request that the Tribunal attempt to take evidence from the persons who provided statutory declarations[30]. It was unable to contact the first named person on the number supplied by Ms Gill because the telephone number had been disconnected, and spoke to the second named person, and took evidence from that person which was that he did not know Ms Gill or of the applicant's relationship with the husband. Additionally, as a result of those attempts, the Tribunal sent a letter to Ms Gill under s.359A of the Migration Act inviting her comment, to which no response was received[31]. These matters demonstrate that, rather than denying Ms Gill an opportunity to “submit more testimony” or otherwise not providing a “fair hearing”, the Tribunal made attempts to obtain evidence from Ms Gill’s witnesses, and provided Ms Gill with clear particulars of the information that it received. These aspects of the grounds give rise to no arguable case of jurisdictional error in the Tribunal decision.

    [29] cf. CB 345 at [49]

    [30] see CB 344–345 at [44]

    [31] see CB 345 at [44]

14. Additionally, it is possible to read Ground 4 as contending that the Tribunal failed to consider material provided by Ms Gill. There is, again, no particularisation or explanation of what material may not have been considered. While Ms Gill provided a substantial amount of material during the decision-making process, the Tribunal stated that it had considered all of the evidence before it, and summarised the documentary evidence provided[32].  In the circumstances, there is no basis to infer that the Tribunal failed to have regard to the material provided, and this gives rise to no arguable case of jurisdictional error in the Tribunal decision.

    [32] CB 345 at [45]–[47]

15. With respect to Ground 2 (which refers to the Tribunal allowing an opinion from an Independent Protection Assessment Reviewer) and Ground 7 (which refers to the Tribunal failing to find that the applicant is owed protection obligations), these grounds have no connection to the decision made by the Tribunal. These grounds give rise to no arguable case of jurisdictional error in the Tribunal decision.

16. I conclude that Ms Gill is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

17. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

18. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale and rules.  Ms Gill indicated that she would need time to pay the scale costs but did not oppose a costs order.

19. I will order that the applicant is to pay the Minister’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 5 December 2016