Sandhu v Minister for Immigration and Anor

[2017] FCCA 2700

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2700

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) subclass 487 visa – applicant applied for the visa on the basis of his membership of the family unit of the primary applicant, who was his then wife – applicant and wife divorced prior to the matter being considered by the delegate – the Tribunal found that the applicant was no longer a member of the family unit of the primary applicant – no error established.

Legislation:
Migration Act 1958, s.5F
Migration Regulations 1994, reg.1.12, cl.487.321 of Schedule 2

Applicant: GAGANDEEP SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 74 of 2017

Judgment of: Judge Riley

Hearing date: 11 October 2017

Date of last submission: 11 October 2017

Delivered at: Melbourne

Delivered on: 11 October 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Lenny Leerdam

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

DISMISSAL

1. The application filed on 13 January 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 74 of 2017

GAGANDEEP SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant applied for a Skilled (Provisional) (Class VC) subclass 487 visa as a member of the family unit of his then wife, who was the primary applicant for the visa.  The delegate of the Minister found that the applicant and his wife were divorced and concluded that the applicant was no longer a family member of the primary applicant’s family unit and, consequently, refused the applicant the visa.  Incidentally, the delegate did grant the relevant visa to the applicant’s former wife.

2. The applicant then sought review by the Tribunal.  The applicant attended a hearing before the Tribunal on 20 December 2016.  The applicant said at the Tribunal hearing that:

   a)his relationship with his former wife had broken down in September 2014;

   b)by the time of the Tribunal’s hearing they had been divorced;

   c)he and his former wife lived separately;

   d)he had not had substantive contact with his former wife since the breakdown of the relationship in September 2014;

   e)he was unaware whether his wife had been granted a visa or not, but thought she had been;

   f)he, in fact, did not know whether she was in Australia or not, but thought that she was; and

   g)he wanted to reconcile with his former wife, but believed that her family was against it.

3. The divorce order was provided to the delegate and was in the documents before the Tribunal.  It showed that the applicant and his former wife were divorced on 14 August 2014.  It also noted that the divorce order would take effect one month later, being 15 September 2014.  When the applicant said that the relationship had broken down in September 2014, he presumably meant that the official ending of the marriage was in September 2014.  The ground for divorce in Australia is at least 12 months separation prior to the filing of the divorce application. It can therefore be understood that the relationship actually ended no later than August 2013.

4. In any event, the Tribunal, during the hearing before it, put to the applicant that he appeared to no longer have a mutual commitment to a shared life to the exclusion of all others with his wife and that their relationship was not genuine and continuing, and, accordingly, he could not be regarded as a member of the family unit of his former wife.

5. The applicant did not resist those propositions. However, he asked if the Tribunal might wait for him to re-establish contact with his former wife and restart the relationship.  The Tribunal declined to do so, noting that there had been no contact between the pair and that the visa application was, at that point, six years old.  Part of the reason for the delay was that there had been changes to the criteria for Skilled (Provisional) (Class VC) subclass 487 visas and processing was held up for that reason.

6. The Tribunal formed the view that the applicant was no longer a member of the family unit of his former wife, and therefore did not meet the criteria in clause 487.321 of Schedule 2 to the Migration Regulations 1994 (“the regulations”). 

7. The applicant then applied to the court for review of the Tribunal’s decision.  The grounds of review in the application filed on 13 January 2017 are as follows:

   The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.

   Particulars

   Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether the visa applicant was member of the family unit.

   The Tribunal erred in determining that the applicant was not a member of the family unit of the primary applicant because the applicant gave evidence that he was attempting to re-establish his relationship with the applicant and that he considered himself to still be a member of the family unit of the primary applicant.

8. The applicant’s affidavit in support said substantially the same things.  The applicant appeared before the court today without the benefit of legal representation.  He did not wish to add anything to the statements in his application.

9. The claim that the Tribunal erred in determining that the applicant was not a member of the primary visa applicant’s family unit because the applicant told the Tribunal he was attempting to re-establish his relationship with his former wife is not sustainable. The requirements for the visa include that the applicant is a member of the family unit of the primary applicant. In this case, the primary applicant was the applicant’s former wife. Under reg.1.12 of the regulations, a member of a family unit is relevantly a spouse of the family head.

10. The definition of spouse is found in s.5F of the Migration Act 1958 (“the Act”).  That says that a person is the spouse of another person if:

    a)they are in a married relationship that is valid;

    b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others;

    c)the relationship between them is genuine and continuing; and

    d)they live together or they do not live separately and apart on a permanent basis. 

11. In the present case, the applicant and his former wife had been married under a valid marriage, but they had divorced with effect from 15 September 2014.

12. The applicant himself conceded as much in the hearing before the Tribunal.  The applicant did not resist the suggestions the Tribunal put to him that it could not be said that he and his former wife presently had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or a relationship between them that was genuine and continuing, or that they lived together or did not live separately and apart on a permanent basis.

13. The applicant’s only argument was that he wished to reconcile with his former wife.  However, that aspiration does not enable the applicant to fit within the definition of spouse.  While it may be thought that the applicant asked the Tribunal for an adjournment to enable him to establish a relationship with his former wife, the applicant did not put anything before the Tribunal to suggest that there was any realistic prospect of him being able to re-establish a relationship with his former wife in the foreseeable future.

14. In those circumstances, there was no error in the Tribunal proceeding to the conclusion that the applicant and his former wife were no longer in a spousal relationship and, as such, the applicant was not a member of the family unit of his former wife, who was the primary applicant.  It does not seem to me that the Tribunal took into account any irrelevant material or failed to take into account any relevant material.

15. The application to this court says that the applicant considered himself to be a member of the family unit of the primary applicant. However, the question for the Tribunal was not the applicant’s perception, but the reality, based on an assessment of the matters set out in s.5F of the Act. In all the circumstances, it does not seem to me that there was any defect in the Tribunal’s refusal of an adjournment or any defect in the Tribunal’s assessment that the applicant was no longer a member of the family unit of the primary applicant and that he did not meet clause 487.321 of Schedule 2 to the regulations.

16. In all the circumstances, it seems that there is no option but to dismiss the application with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:  3 November 2017