Sidhu v Minister for Immigration

[2015] FCCA 3507

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3507

Catchwords:
MIGRATION – Partner visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision.

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.360, 474

Migration Regulations 1994, cl.820.211 of sch.2, cls.3001 and 3004 of sch.3
Federal Circuit Court Rules 2001, rr.13.03C, 13.10, 16.05

Cases Cited:
Sidhu v Minister for Immigration & Anor [2015] FCCA 507
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: HARWINDER SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 338 of 2015

Judgment of: Judge Cameron

Hearing date: 10 December 2015

Date of Last Submission: 10 December 2015

Delivered at: Sydney

Delivered on: 10 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J. Pinder of Minter Ellison

ORDERS

1. The applicant’s application in a case filed on 25 November 2015 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to that application in a case fixed in the amount of $1,436.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 338 of 2015

HARWINDER SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (“Rules”) seeking to set aside a decision of Registrar Hannigan made on 29 October 2015 on the basis that the registrar’s orders were made in his absence.

2. The applicant commenced proceedings in this Court by an application filed on 12 February 2015 in which he sought judicial review of a decision made by the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, affirming a decision made by a delegate of the first respondent (“Minister”) to refuse him a Partner (Temporary) (Class UK) subclass 820 visa.  The applicant’s application was listed for its first court date on 5 March 2015.  The applicant appeared in court on that date when his application was summarily dismissed by Judge Street on the basis that it had no reasonable prospects of success: Sidhu v Minister for Immigration & Anor [2015] FCCA 507.

3. The applicant appealed to the Federal Court. By consent orders made on 21 July 2015, the matter was remitted to this Court. Following that remittal, the Court’s registry sent to the applicant a letter dated 16 September 2015 advising him that his case had been listed for directions before a registrar on 29 October 2015. There was no appearance by or for the applicant on that occasion and on the Minister’s application the proceedings were dismissed pursuant to r.13.03C(i)(c) of the Rules.

4. The considerations which are, in my view, relevant to whether to grant the present application for re-instatement are whether the applicant’s explanation for his non-attendance on 29 October 2015 is a satisfactory one and whether, nevertheless, his allegations in the substantive application have reasonable prospects of success (see r.13.10(a) of the Rules).

SATISFACTORY EXPLANATION

1. Turning first to the issue whether the applicant has provided a satisfactory explanation for his non-attendance, in his affidavit in support of his application in a case he deposed that he had been unable to attend court on 29 October 2015 because he had been suffering from diarrhoea.  In his evidence to the Court at the hearing of this application the applicant essentially reiterated what he had said in his affidavit. 

2. The applicant was cross-examined by Mr Pinder on behalf of the Minister and, as a result of that cross-examination, some incongruous circumstances did emerge, most particularly, in my view, that although the applicant had, on his evidence, been unwell during the night and so must have been aware in the morning of 29 October 2015 that he would be unable to attend court, he did not seek to advise the Court before 10:15am on 29 October or, indeed, until the afternoon of that day, that he would be or had been unable to attend court.

3. The question arises why the applicant advised the Court so late and the explanation which suggests itself is that the applicant had not been ill.  However, the applicant really had nothing to gain by failing to attend the directions hearing and so there appears no motive to tell an untruth.  In such circumstances and also having had regard to the applicant’s demeanour in the witness box, including what appeared to me to be an authentic air to at least some of his evidence, I am prepared to accept that he was unwell on the day of the directions hearing before the registrar and that his explanation for non-attendance is a satisfactory one.

ARGUABLE CASE

1. However, the application to set aside the registrar’s orders will not be granted unless the applicant has a case for judicial review with reasonable prospects of success. In this regard, it should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot rehear the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, the applicant will not have made out his case to set aside the registrar’s orders unless he can demonstrate that he has reasonable prospects of proving in the substantive proceedings that the Tribunal’s decision is affected by jurisdictional error.

Relevant legislation

1. The criteria for the grant of a Partner (Temporary) (Class UK) subclass 820 visa are set out in pt.820 of sch.2 to the Migration Regulations 1994 (“Regulations”). One of the criteria which the applicant had to satisfy at the time he made his application was cl.820.211. It relevantly provided:

   (2)     An applicant meets the requirements of this subclause if:

   (a)the applicant is the spouse or de facto partner of a person who:

   (i)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)     is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c) the applicant is sponsored:

   (i)     if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner;

   …

   (d)in the case of an applicant who is not the holder of a substantive visa … :

   …

   (ii)     the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

2. The sch.3 criteria which were relevant to the applicant’s application were criteria 3001 and 3004. They relevantly provided:

   3001

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause(1) … the relevant day, in relation to an applicant, is:

   …

   (c) if the applicant:

   (i)     ceased to hold a substantive … visa on or after 1 September 1994; …

   …

   whichever is the later of:

   (iii)   the last day when the applicant held a substantive … visa;

   …

   3004

   If the applicant:

   (a)ceased to hold a substantive … visa on or after 1 September 1994; …

   …

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

   (d)     there are compelling reasons for granting the visa; and

   (e)     the applicant has complied substantially with:

   …

   (ii)     the conditions that apply or applied to:

   (A)     the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

   (B)     any subsequent bridging visa; and

   (f)either:

   (i)in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive ... visa; or

   …

   (g)the applicant intends to comply with any conditions subject to which the visa is granted; …

Background facts

1. The applicant is a citizen of India who arrived in Australia on 17 November 2008 as the holder of a student visa which expired on 15 March 2011.  On 11 June 2013 he applied for a subclass 820 partner visa.  His application was sponsored by his de facto partner who is an Australian citizen.  In his application the applicant stated that he met his partner on 29 June 2012, began a relationship with her on 8 December 2012 and committed to sharing a life with her on 29 June 2013.  Amongst other documents, he provided a relationship certificate indicating that he and his sponsor had registered their de facto relationship with the NSW Registry of Births, Deaths and Marriages on 14 March 2013.

2. In the covering letter accompanying his application the applicant acknowledged that his last substantive visa had expired more than twenty-eight days before he had lodged his partner visa application and that he would need to satisfy the requirements of sch.3 to the Regulations. However, he sought a waiver of those requirements on the basis that there were compelling reasons to grant him the. In support of that argument he provided a statutory declaration dated 18 November 2013 in which he stated:

   a)before the expiry of his student visa he had met an agent who had promised to lodge an employer-sponsored visa on his behalf but he had been defrauded and no visa was lodged on his behalf;

   b)he had lodged his partner visa application while in Australia rather than returning to India and lodging it from there because he and his sponsor had promised never to be apart.  It would have been hard for them and would have adversely impacted their relationship if he had returned to India to lodge the application.  He was also the principal breadwinner and if he had left for India his sponsor’s income would not have been sufficient to meet all their financial commitments; and

   c)he had asked his sponsor to return with him to India to lodge his application but they had decided not to go to India because:

   i)his sponsor’s life would have been in danger. Many foreigners in India were robbed, raped and abused and his sponsor was afraid of being raped in India;

   ii)his sponsor could not speak any of the Indian languages and moving there would have affected her career aspirations;

   iii)his sponsor owned a horse in Australia which would have been difficult for her to leave; and

   iv)they did not have the financial means to travel overseas and live there for the extended period of time it would take to process his application.

3. On 6 December 2013 the delegate refused the applicant’s application on the basis that he did not satisfy cl.820.211 of sch.2 of the Regulations. The delegate also found that the applicant had ceased to hold a substantive visa more than twenty-eight days prior to lodging his application, and so did not meet criterion 3001 of sch.3 of the Regulations. She was also not satisfied that there were compelling reasons to waive the sch.3 criteria.

4. On 24 December 2013 the applicant applied to the Tribunal for review of the delegate’s decision.  At a Tribunal hearing on 14 January 2015 he relevantly stated:

   a)his relationship with his sponsor had broken down a month before the hearing and she was living with her parents.  She had not yet formally withdrawn her sponsorship but had told him that she intended to withdraw it;

   b)after his student visa expired he met a man who owned a restaurant who had promised to sponsor him.  He paid the man $25,000 but the man took his passport and disappeared; and

   c)his sponsor did not want to live in India and her parents had told her that she could not travel there.  It would be difficult for them to find work and they would have to be dependent on his parents.

The Tribunal’s decisions and reasons

1. The Tribunal noted that the applicant’s last substantive visa had ceased on 15 March 2011 and that he had made his application for the partner visa on 11 June 2013. In those circumstances it found that he had not applied for a visa within twenty-eight days of his last substantive visa and therefore did not satisfy criterion 3001 of sch.3 of the Regulations.

2. The Tribunal went on to consider whether there were compelling reasons for not applying the sch.3 criteria but it was not satisfied that the matters raised by the applicant were compelling reasons for not applying those criteria. In that regard:

   a)the Tribunal noted that the applicant had been in Australia unlawfully for more than two years before lodging his partner visa application.  It found that there was no independent evidence to suggest that the applicant had made any attempts to regularise his status and did not accept his evidence that he had been deceived by a man who had agreed to sponsor him amounted to a compelling reason to waive criterion 3001;

   b)while the Tribunal accepted that at the time the applicant lodged his visa application he and his sponsor had not wished to be separated, it did not consider that any unhappiness arising or resulting from such a separation was a compelling reason to waive the sch.3 criteria. It found that the applicant and his sponsor could have continued to provide each other with emotional support through the array of available communication tools;

   c)the Tribunal was not satisfied that at the time the applicant lodged his application his sponsor had been financially dependent on him or that she would have suffered psychological or material hardship if he had departed Australia. It did not accept that her claimed financial or emotional dependence was a compelling reason to not apply the sch.3 criteria;

   d)while accepting that it might have been difficult for the applicant’s sponsor to find work in India and that they might have had to be financially dependent on the applicant’s parents while his visa application was being processed, the Tribunal did not consider those matters to be compelling reasons for waiving the sch.3 criteria;

   e)the Tribunal accepted that the applicant’s sponsor owned a horse and was concerned for its welfare and that she might have preferred not to be separated from it. However, it found that that was not a compelling reason for waiving the sch.3 criteria;

   f)the Tribunal accepted that the applicant’s sponsor might not have felt safe travelling to or residing in India but found that it would have been open to her to remain in Australia while the applicant’s application was processed;

   g)the Tribunal noted that the applicant and his sponsor had registered their de facto relationship in March 2013, three months before the applicant lodged his partner visa application.  It was therefore not satisfied that their relationship had been of long standing at the time of that application.  It also noted that they did not have any Australian-born children; and

   h)the Tribunal had regard to the fact that the applicant and his sponsor had separated and that the sponsor had not appeared at his hearing to present evidence about any compelling circumstances which had existed at the time of the applicant’s application.

Proceedings in this Court

1. In his originating application filed on 12 February 2015 the applicant alleged:

   1.My application was refused on the basis of not meeting Schedule 3.

   2.I had provided DIBP office my evidence of compelling reason which they did not accept, due to this stress, it put a large impact on my relationship.  While my application was in MRT, I also told the case officer that my relationship had broken down.  After the hearing of MRT, I reconciled with my partner as we cannot live apart, it was a temporary separation due to some misunderstanding and we are now together again.

   3.I trust that I was unable to provide good reasons of my compelling circumstances to Migration Review Tribunal due to level of Stress and Ups and downs in my relationship with my partner.

   4.I truly believe that I have compelling and compassionate reasons for seeking a waiver of Schedule 3 and firmly believe that I should be granted a visa.

2. At the hearing of this application the applicant also argued that the Tribunal should have contacted his partner so that she could give evidence at the Tribunal hearing and, further, that his evidence concerning having been defrauded by a potential sponsor was a circumstance sufficient to justify the waiving of the sch.3 criteria.

Ground 1

1. The first ground of the application is no more than a description of the Tribunal’s finding and does not allege any error on its part. 

Ground 2 

1. The second ground of the application speaks of the applicant’s reconciliation with his partner after the Tribunal hearing and impliedly alleges that the Tribunal should have had regard to this.  However, the applicant did not suggest that he had made the Tribunal aware of this reconciliation and para.35 of the Tribunal’s reasons indicates that the Tribunal was unaware of it.  As there is no basis to conclude that the Tribunal was aware of the claimed reconciliation, there is similarly no basis to conclude that its apparent failure to consider it amounted to an error.

Ground 3

1. The burden of the third ground of the application is that the applicant was unable to put his case to the Tribunal properly because of his emotional state at the time of the Tribunal hearing. No evidence was adduced to support such a proposition. Consequently, there is no reason to conclude that the applicant was denied the meaningful hearing implicitly guaranteed to him by s.360 of the Act.

Ground 4

1. The fourth ground of the application invited the Court to undertake a review of the merits of the visa application, something which the Court cannot do. 

Ground 5

1. Turning to the first of the matters which the applicant raised at the hearing, the Tribunal will only be required to make inquiries on its own account in a narrow range of circumstances, none of which appears to be present in this case. The suggestion that the Tribunal should have contacted the applicant’s partner does not fall into those circumstances because, as the Tribunal recorded at para.22 of its reasons, the applicant had told it that his relationship with his sponsor had broken down about approximately a month earlier and that she intended to withdraw the sponsorship. In those circumstances, it would have been apparent to the Tribunal that nothing was to be gained, at least in the context of the applicant’s request that the sch.3 criteria not be applied, in calling the applicant’s partner and so no error was committed by the Tribunal in not attempting to arrange her attendance.

2. In those circumstances, there is similarly no basis to find that the Tribunal should have adjourned its hearing so that the applicant’s partner could attend.  Not only is there no record in the Tribunal’s reasons of the applicant having sought an adjournment so that his partner could attend but, for the reasons already given, it would have appeared to the Tribunal that nothing would have been gained from such an adjournment.

Ground 6 

1. The allegation made at the hearing of this application concerning the fraudulent sponsor was, like para.4 of the application, an invitation to engage in merits review and thus does not provide a basis to find jurisdictional error on the Tribunal’s part. 

CONCLUSION

1. Although I have concluded that the applicant’s explanation for failing to attend the directions hearing on 29 October 2015 is a satisfactory one, none of the allegations which he has raised in connection with his substantive application appear to have reasonable prospects of success.  That is to say, I am not persuaded that the applicant has, based on the matters which he has raised, reasonable prospects of demonstrating that the Tribunal’s decision is affected by jurisdictional error.  In the circumstances, it would not be appropriate to set the registrar’s decision aside. 

2. The applicant’s application in a case will therefore be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  15 January 2016