Sangha v Minister for Immigration

[2016] FCCA 1277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANGHA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1277

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – whether the Tribunal failed to properly apply the law – bias – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 476

Migration Regulations 1994, Schedule 2, cl.820.211(2)(a)

Applicant: SATWANT SINGH SANGHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 366 of 2015

Judgment of: Judge Street

Hearing date: 23 May 2016

Date of Last Submission: 23 May 2016

Delivered at: Sydney

Delivered on: 23 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms Milutinovic
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 366 of 2015

SATWANT SINGH SANGHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 11 September 2013 affirming the decision of the delegate not to grant the applicant a Partner Temporary (Class UK) visa.

2. The applicant is a citizen of India and first arrived in Australia on a student visa on 15 July 2009.  On 24 October 2011, the applicant was granted a Student (Class TU) subclass 572 visa, which was valid up until 21 August 2013.  On 20 August 2013, the applicant lodged an application for the visa on the basis of his relationship with the sponsor.  The sponsor is an Australian citizen.  The applicant and the sponsor were married on 10 April 2013 and the applicant and the sponsor provided statements in support of the application.

3. On 3 October 2014, a delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied that the requirements of cl.820.211(2)(a) of the schedule to the Migration Regulations 1994 were satisfied. The delegate was not satisfied that the applicant and the sponsor were living together in a genuine and continuing relationship and found that the applicant was not in a spousal relationship with the sponsor as defined in s.5F of the Act.

4. On 22 October 2014, the applicant applied for a review.  On 16 June 2015, the Tribunal sent the applicant a letter inviting the applicant to appear at a hearing to be held on 20 July 2015.  On 9 July 2015, the applicant’s agent requested that the hearing be postponed, as the sponsor could not attend the hearing due to a medical problem.  On 10 July 2015, the Tribunal wrote to the applicant, inviting the applicant to appear at a re-scheduled hearing on 21 August 2015.  On 18 August 2015, before that scheduled hearing, the applicant’s agent provided a written submission and further material to the Tribunal.  The applicant appeared on 21 August 2015 before the Tribunal to give evidence and present arguments.

5. On 26 August 2015, in accordance with s.359A, the Tribunal wrote to the applicant, drawing the applicant’s attention to certain information and inviting the applicant’s response in respect of that information that might be a reason for finding that the applicant was not in a genuine relationship.

6. It is apparent that the delegate found that the applicant was not in a genuine relationship and, in those circumstances it was a live issue before the Tribunal whether the applicant was in a genuine relationship with his spouse. The obligations under s.359A are confined by subs.(4) and further the Tribunal was not required to identify all inconsistencies that might be the subject of adverse findings. Section 359A only relates to information of a particular kind that is not otherwise exempted under s.359A(4) or has not been the subject of appropriate opportunity under s.359AA.

7. At the time of the hearing, the applicant was represented by his migration agent.  It is apparent from the Tribunal’s reasons that the Tribunal raised a number of issues in relation to the requirements of s.5F with the applicant. The Tribunal made adverse findings in relation to the criteria and concluded that the applicant and the sponsor were not in a genuine relationship. The Tribunal found that it did not accept the parties live together and did not accept that they have a mutual commitment to a shared life and a genuine and continuing relationship. The Tribunal found that the relationship had been contrived for the purpose of the applicant obtaining a visa outcome.

8. It was in those circumstances the Tribunal found that the applicant did not meet the criteria of clause 820.211(2)(a) and the Tribunal noted that there was no evidence that the applicant met the criteria under clause 820.211(7), 820.211(8) or 820.211(9) and it was for those decisions that the decision of the delegate was affirmed.

9. On 6 November 2015, a Registrar of the Court fixed the matter for hearing and gave the applicant an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The application identifies the following grounds:

   1. Error of law by AAT

   2. Bias

10. At the commencement of the hearing, the Court explained to the applicant that the nature of the hearing was to determine whether the Tribunal’s decision was affected by legal error.  The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that if satisfied that the decision was affected by legal error, the Court would set aside the decision and send it back for a further hearing.  The Court explained that, if not satisfied, that the decision was affected by relevant legal error, the application would be dismissed. The Court explained it would identify the evidence and then hear submissions from the applicant and then submissions from the first respondent and then submissions from the applicant.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

11. In relation to ground 1, there are no errors of law identified in the application that are capable of identifying any jurisdictional error.  From the bar table, the applicant sought to take issue with the adverse findings of the Tribunal, first of all, in relation to the Centrelink dealings by the applicant and the sponsor.  Those adverse findings in relation to the dealings between the applicant and Centrelink and his sponsor and Centrelink were open on the material before the Tribunal.  The applicant sought to take issue with the Tribunal’s findings in relation to the social aspects of the relationship.  Those adverse findings were open on the material before the Tribunal.  The applicant sought to take issue with the financial aspects of the relationship.  Those adverse findings were open on the material before the Tribunal.  The applicant sought to take issue with the Tribunal’s findings in relation to the payment of rent and the rental contributions.  The adverse findings made by the Tribunal were open on the material before the Tribunal.

12. The applicant maintained that he provided explanations for the concerns raised by the Tribunal and that the Tribunal did not accept his explanations.  The applicant took issue with the finding of the Tribunal that he did not know when his mother-in-law would be released from jail.  The applicant also sought to explain why it was that there were not a number of photographs, and the applicant maintained that he and his sponsor had been living together.  The applicant sought to identify that there was significant debt which is one where he explained why he said that a certain amount was owed by him and a certain amount was owed by his wife.  Nothing said by the applicant identified any jurisdictional error.

13. In relation to the debt, the applicant sought to explain that he was working.  It was for that reason that there were no substantial contributions that had been made by his wife.  The applicant was asked whether the errors of law which he wished to raise were the errors that he had identified orally to the Court, and the applicant confirmed that was the position.  None of the alleged errors identified by the applicant amounted to jurisdictional errors

14. All of the matters identified by the applicant are, in substance, an impermissible invitation to this Court to engage in a merits review.  This Court does not have jurisdiction to make fresh findings of fact in relation to the merits. This Court have any jurisdiction to make orders based on compassionate grounds.  The applicant raised the importance of the proceedings to him and his wife and his wife’s depression.  This Court has no jurisdiction to make orders in relation to these proceedings based on the compassionate circumstances of the parties.

15. Ground 1 fails to make out any jurisdictional error by the Tribunal. The bare assertion of error of law does not make out any error. Nor on the face of the reasons of the Tribunal did the Tribunal fail to comply with its statutory obligations. The applicant had a genuine hearing and there is nothing to reveal any denial of procedural fairness by the Tribunal.

16. In relation to the Ground 2, the applicant was asked whether it was the questioning by the Tribunal which was the conduct upon which the applicant relied in relation to the allegation of bias.  The applicant confirmed that it was the questioning by the Tribunal, in particular about the car and when his mother-in-law would be released from prison, as well as the fact that he received a letter only raising two matters in respect of inconsistencies.

17. The letter was sent to the applicant on 26 August 2015 was in compliance with the Tribunal’s obligations under s.359A. The asking of questions by the Tribunal, including about the applicant’s car and when the mother-in-law was released, and the sending to the applicant of a letter in compliance with s.359A addressing two inconsistencies are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Bias is an allegation that must be clearly alleged and properly proven. No allegation of bias is proven. Ground 2 fails to make out any jurisdictional error.

18. In the course of submissions in reply, the applicant identified that the questions of the Tribunal could be identified by reference to the record of the Tribunal.  The Court pointed out that the record of the Tribunal was not in evidence.  The applicant then sought an adjournment for the purpose of obtaining the transcript and to put on further evidence.  The Court sought to explore with the applicant what it was in the transcript that would assist the applicant in relation to any allegation of bias.  The applicant confirmed that the transcript would identify the questions on the topics by the Tribunal the subject matter of the findings of inconsistencies and that the applicant had provided a response and that the Tribunal had not asked further questions.  That is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Nothing said by the applicant identified any relevant evidence that would be obtained by the granting of an adjournment.

19. The only other matter identified by the applicant was the letter of 26 August 2015, not addressing all the inconsistencies found by the Tribunal.  For the reasons given, that is not capable of giving rise to any jurisdictional error by the Tribunal.  The adjournment application had not earlier been raised by the applicant with the first respondent and the applicant had been given an opportunity, in accordance with the orders that were made on 6 November 2015, to put on further evidence.  The explanation for the failure to put on the evidence was not satisfactory.  The adjournment application was opposed by Counsel for the first respondent.

20. In the circumstances, the Court is not satisfied that an adjournment would have been of any utility.  The Court is not satisfied that the transcript would in any way advance the applicant’s case in relation to the issue of bias on the basis of what the applicant put forward before the Court.  The applicant said that he had not been able to obtain a transcript because of his financial difficulties.  There is no reason for the Court to be satisfied that the applicant’s financial difficulties would in some way be overcome by an adjournment, in any event.

21. The Court is further of the view that an adjournment is only likely to increase the costs of the respective parties and utilise limited Court time. The Court was not satisfied that an adjournment required in the interests of the administration of justice.  It is for the above reasons that the application for an adjournment was refused.  In these circumstances, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 26 May 2016

CORRECTIONS:

1.   Hearing date changed to 23 May 2016

2.   Date of last submission changed to 23 May 2016

3.   Delivery date changed to 23 May 2016