Gill v Minister for Immigration

[2018] FCCA 1264

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1264

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – show cause hearing – whether the applicant has an arguable case that the Tribunal made a jurisdictional error – no error identified.

Legislation:
Migration Act 1958, s.362B
Federal Circuit Court Rules 2001, r.44.12(1)(a)
Migration Regulations 1994, cl.820.211(2)(a)(i) and cl.820.221(1)(a) of Schedule 2

Cases cited:
He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant: JAGMAIL SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 755 of 2017

Judgment of: Judge Riley

Hearing date: 30 April 2018

Date of last submission: 30 April 2018

Delivered at: Melbourne

Delivered on: 30 April 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Melinda Jackson
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 13 April 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 755 of 2017

JAGMAIL SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 30 April 2018. The applicant filed an application for leave to appeal on 14 May 2018. The registry has not advised chambers that the applicant has applied for leave to appeal. Chambers ordered a transcript of the reasons for judgment on 16 May 2018. Auscript provided the transcript of the reasons for judgment on 16 May 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 17 May 2018.

1. This is a show cause hearing in the context of an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”). 

2. On 23 July 2014, the applicant applied for a partner visa on the basis of his relationship with his sponsor, Ms Gurmeet Kaur.  On 15 May 2015, Ms Kaur sent to the Department of Immigration and Border Protection (“the Department”) a notification of change of circumstances.  In that notification, Ms Kaur advised that she was no longer in a relationship with the applicant.  She marked a box in answer to question 4 on the notification indicating that she was separated.

3. On 8 October 2015, the Department sent the applicant an invitation to comment on certain information.  The invitation said that:

   Information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased.  This is likely to result in the refusal of your application. 

4. The letter asked the applicant to respond within 28 days, explaining his current circumstances, and the reason for the breakdown of his relationship.  The applicant did not provide any response. 

5. The delegate proceeded to refuse the partner visa application. The delegate’s decision record sets out the relevant legislation, including cl.820 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

6. The reasons for the delegate’s decision included the following (CB110): 

   On 15 May 2015, a withdrawal was received,  your sponsor advised that your relationship had ceased, and that they wished to withdraw their sponsorship. 

   …

   As your sponsor has withdrawn sponsorship, I find that you are no longer the spouse of the person who meets the criteria at regulation 820.211(2)(a)(i) as required by 820.221(1)(a). 

   In situations where the relationship has ceased and/or sponsorship has been withdrawn, legislation also provides for the grant of a permanent visa in certain limited circumstances.  Those circumstances are:

   · the death of the sponsor (subclause 820.221(2)), or

   ·where it is assessed that the applicant and/or dependent child of the sponsoring partner or of the applicant or both of them has suffered family violence committed by the sponsoring partner; (subclause 820.221(3)(b)(i)), and/or

   ·the applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (subclause 820.221(3)(b)(ii)).

7. The delegate noted that there was no evidence that the sponsor was deceased, no evidence that family violence had occurred, and no evidence that there was a child of the relationship.  The delegate proceeded to conclude that the applicant was no longer the spouse of the sponsor.  The delegate considered whether the criteria for the grant of the visa existed, notwithstanding the end of the relationship, but found that they did not.  The delegate went on to refuse the application for the visa.

8. The applicant applied to the Tribunal for review.  The applicant, for the purposes of the review, was represented by a migration agent by the name of Yadwinder Singh. 

9. The Tribunal invited the applicant to attend a hearing.  The invitation was sent on 17 March 2017.  The hearing was scheduled for 5 April 2017.  The applicant responded to the hearing invitation indicating that neither he nor his migration agent would attend the hearing.

10. The Tribunal noted that the applicant had indicated that neither he nor his representative would attend the hearing.  The Tribunal said, in its reasons for decision at paragraphs 13 and 14:

    13.On the basis of Ms Kaur’s withdrawal of sponsorship and advice to the Department that the relationship has ceased, the Tribunal is not satisfied that Mr Singh is now the spouse or de facto partner of Ms Kaur. Mr Singh therefore does not meet clause 820.221(1).

    14.The relevant alternative criteria set out in clause 820.221(2), 820.221(3) (death, family violence, child exceptions). There are no claims, and there is no evidence to support any claims, that Mr Singh meets any of the alternative criteria.

11. The Tribunal affirmed the delegate’s decision. 

12. The applicant then applied to this court.  The matter was listed for a show cause hearing.  The application sets out the following grounds:

    1.The Tribunal has failed to consider my personal circumstances while deciding upon the application.

    2.The Tribunal failed to provide me the opportunity to provide details about the relationship break up. Under what circumstances the relationship was broken.

13. In relation to the first ground, the Tribunal did, in fact, consider the applicant’s personal circumstances insofar as they were made known to the Tribunal.  The Tribunal noted that the applicant and Ms Kaur met in about April 2014 and married on 23 June 2014 pursuant to arrangements made by their families.  The Tribunal noted that Ms Kaur had withdrawn her sponsorship.  The applicant did not provide any additional information to the Tribunal about his personal circumstances for the Tribunal to consider.  Consequently, it is not arguable that the Tribunal has failed to consider the applicant’s personal circumstances.

14. As to the second ground in the application, the Tribunal did provide the applicant with an opportunity to provide details about his relationship breakup by inviting the applicant to a hearing.  The applicant, however, chose not to avail himself of that opportunity.  I do not consider that the second ground is made out. 

15. It is well established that s.362B of the Migration Act 1958 (“the Act”) permits the Tribunal to proceed to make a decision without allowing an applicant any further opportunity to appear if the Tribunal has properly invited the applicant to a hearing and the applicant does not attend. Section 362B of the Act applies in this case. There is no substance to the claim that the Tribunal did not afford the applicant the relevant opportunity.

16. The applicant said to the court that the circumstances of his marriage breakdown were that his wife would ask for money all the time.  He said, in particular, Ms Kaur asked him to buy her a brand new house and she said that, if he did not give it to her, she would leave him.  That explanation for the breakdown of the relationship is not one of the legislatively permitted exceptions to the requirement for a continuing spousal relationship.  Consequently it is not indicative of any jurisdictional error made by the Tribunal. 

17. The applicant also told the court that he tried to bring his wife to the Tribunal hearing, but that she said she needed a few months.  The applicant said he missed the Tribunal hearing because he was trying to ring his wife.  These explanations are not satisfactory explanations for the applicant himself failing to attend the Tribunal hearing.  In any event, he did not ask for an adjournment of any particular length of time, or at all, for him to be able to persuade his wife to give evidence. 

18. The Minister noted that the time of application criteria in cl.820.211(1) and (2) of Schedule 2 to the Regulations require the applicant to be the spouse or de facto partner of the person who is sponsoring him. The time of decision criteria in cl.820.221 of Schedule 2 of the Regulations require the applicant to continue to meet the requirements of, among other things, cl.820.211(1) and (2) of Schedule 2 of the Regulations. The applicant did not meet those criteria because he was no longer sponsored by the sponsor and he was no longer in a spousal relationship with her.

19. The Minister drew the court’s attention to the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206, particularly at paragraph 76, where the Full Court said that it was a requirement that the Tribunal make findings on each of the matters set out in reg.1.15A(3) of the Regulations. That regulation sets out in a list form various matters that the Tribunal is required to consider in deciding whether a person is in a spousal relationship. The Minister said that He could be distinguished in the present case because, in addition to finding that the applicant was no longer the spouse of his sponsor, the Tribunal independently found that the sponsor was no longer sponsoring the applicant.

20. It seems to me that that submission is correct.  The requirement to be sponsored is a separate requirement to the requirement to be a spouse, and, in this case, the sponsorship was withdrawn.  The applicant was put on notice that sponsorship was part of the factual matrix of the case by the delegate’s reasons for decision.  There was no denial of procedural fairness in the matter being dealt with by the Tribunal in that way.

21. All in all, it seems to me that there is not an arguable basis for finding that there was any jurisdictional error made by the Tribunal in this matter. The Tribunal appears to have correctly applied the law, afforded the applicant procedural fairness, albeit within the limits permitted by the Act, and reached the only decision that was open to it on the undisputed facts.

22. In all the circumstances, the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 17 May 2018