SINGH v Minister for Home Affairs
[2019] FCCA 1623
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1623 |
| Catchwords: MIGRATION – Partner visa – spousal relationship – show cause – Tribunal affirms delegate’s decision – application for judicial review – whether Tribunal’s decision lacked procedural fairness – whether Tribunal failed to consider material – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 348, 359, 359B, 360, 363A, 474, 476, 498 Migration Regulations 1994 (Cth), regs 1.15A, 4.18A, Sch 2 cl 801.21, 801.211, 801.22, 801.221, 820.211, 1124B, 1214C |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | JAGDEEP SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2153 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 June 2019 |
| Date of Last Submission: | 5 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The applicant’s application filed on 6 October 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2153 of 2017
| JAGDEEP SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 6 October 2017, the applicant filed an application for an order to show cause pursuant to s 476 of the Migration Act 1958 (Cth) (Act), seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 September 2017. The Tribunal affirmed the decision of a delegate of the first respondent (delegate) not to grant the applicant a Partner (Temporary) (Class UK) visa.
Background
The applicant is a male citizen of India aged 37 years who, on 18 May 2015, applied for a Partner visa on the basis of his married relationship with Ms Irene Dale Ryan (sponsor), an Australian citizen.
A primary criterion that applied to the grant of the visa was cl 820.211 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) which required that the applicant demonstrate he was the spouse of an Australian citizen.
On 29 August 2016, the delegate requested supporting evidence of the applicant’s relationship with the sponsor. As no response was received on 17 November 2016, a delegate of the Minister refused to grant the visa on the basis the available evidence was not sufficient to demonstrate that the applicant satisfied the definition of spouse under s 5F of the Act.
Tribunal’s decision
On 21 November 2016, the applicant’s migration representative lodged an application to the Tribunal for review of the delegate’s decision.
On 28 March 2017, the Tribunal wrote to the applicant’s appointed representative inviting the applicant to provide further information pursuant to s 359(2) of the Act in support of his claims that he and the sponsor were in a spousal relationship. In particular, the Tribunal’s letter stated that, if the information was not provided by 11 April 2017 and no extension of time was sought, then the Tribunal “may make a decision on the review without taking any further action to obtain information. You will also lose any entitlement you might otherwise have had under the [Act] to appear before us to give evidence and present arguments”.
During April 2017, the applicant’s representative sought, and the Tribunal granted the maximum extension of time that could be granted to allow the applicant to provide such information.[1] The extension of time was sought because the applicant was scheduled to travel overseas until 25 April 2017. In granting the extension, the Tribunal advised the applicant that he must provide information by 26 April 2017, and reiterated that if the information was not received by that date, then he would lose any entitlement to appear before the Tribunal.
[1]Pursuant to s 359B(4) and reg 4.18A(4), the Tribunal could only extend the prescribed period by 14 days after the day the applicant received notice of the extended period.
No further information was provided by the applicant or his agent, resulting in the applicant being no longer entitled to appear before the Tribunal and that the Tribunal had no power to permit him to appear.[2] In those circumstances, the Tribunal exercised its discretion under s 359C(1) of the Act to make a decision on the review without taking any further action to obtain the information.[3] The Tribunal provided a statement of reasons for its decision (Reasons).
[2]Act, ss 359, 360(3), 363A; Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 (Hasran).
[3] Act, s 359C(1).
The Tribunal correctly identified that the issue in the case was whether the applicant satisfied the requirements of cl 820.211 and in particular cl 820.211(2), whether the applicant was the spouse of his sponsor.
The Tribunal found that the parties had been validly married for the purpose of the Act.[4] The Tribunal then considered, at length, the criteria set out in reg 1.15A(3): Reasons, [18]-[53]; see He v Minister for Immigration and Border Protection.[5]
[4] Act, s 5F(2)(a).
[5] He v Minister for Immigration and Border Protection (2017) 255 FCR 41.
The Tribunal gave no weight to the financial aspects of the parties’ relationship,[6] due to a lack of evidence: Reasons, [26]. At the time of application for the visa, the applicant was asked to give details of the financial aspects of the relationship. While the applicant’s responses in his visa application was “as per attached”, the Tribunal noted that no such evidence was provided to the Department and that the applicant had not provided any information or evidence of this kind (or at all) to the Tribunal: Reasons, [23], [24].
[6] Regulations, reg 1.15A(3)(a).
Concerning the nature of the parties’ household,[7] the Tribunal also found that the applicant had provided no evidence or information to either to the Department or to the Tribunal in response to the invitation under s 359(2): Reasons, [28]. The Tribunal further found that there was evidence that the sponsor had four children but there was no corroborating evidence as to any joint responsibilities as to the care of the children: Reasons, [29]. With respect to living arrangements, while the applicant’s residential address corresponded with the address on the sponsor’s driver’s licence, there was no further corroborating evidence of a shared address: Reasons, [30]. The Tribunal was not satisfied that the information and evidence provided established that the parties shared a house at the time of visa application or at the time of the Tribunal’s decision: Reasons, [33]. In light of the limited evidence and lack of corroborating information, the Tribunal gave no weight to the evidence of the nature of the household in deciding whether the parties’ were in a spousal relationship: Reasons, [34].
[7] Regulations, reg 1.15A(3)(b).
Concerning the social aspects of the relationship,[8] the Tribunal accepted the photos submitted with the visa application showed that the parties represented themselves as being married to each other at their wedding function, but was concerned that no further photos from any other occasion had been provided: Reasons, [37]. Whilst there were two Form 888 statutory declarations made in support of the visa application, the Tribunal gave them very little weight in assessing the parties’ relationship due to their generic nature and inconsistencies regarding when the declarants claimed to have first met the applicant and sponsor: Reasons, [38]-[43]. The Tribunal found that at the time of its decision, there was no current evidence of the opinions of the parties’ friends, families and acquaintances about the nature of the relationship: Reasons, [44]. The Tribunal gave some weight to the evidence of the social aspects of the relationship at the time of the application, but concluded that there was no evidence of the social aspects of the relationship at the time of the Tribunal decision: Reasons, [46].
[8] Regulations, reg 1.15A(3)(c).
When considering the nature of the parties’ commitment[9] to each other, the Tribunal had regard to the applicant’s claim that the parties had first met one another on 6 March 2015 then married three weeks later (on 27 March 2015) and that the parties commenced living together at this time. The Tribunal accepted the parties were married: Reasons, [48]. The Tribunal again referred to the applicant’s record of responses in his visa application that where he had been asked to provide details of the nature of the parties’ commitment to each other, he had stated “as per attached” and found that the applicant had not in fact attached any evidence in support of the nature of the parties’ commitment to each other; whether at the time of application or upon request from the Department o the Tribunal: Reasons, [49]. For those reasons, the Tribunal gave very little weight to the evidence about the nature of the parties’ commitment to each other when assessing whether they were in a spousal relationship: Reasons, [53].
[9] Regulations, reg 1.15A(3)(d).
The Tribunal concluded that while the parties were validly married, it was not satisfied that, at the time of application or decision, the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship was genuine and continuing.[10] The Tribunal was also not satisfied that the parties lived together or did not live apart on a permanent basis.[11] As the Tribunal was not satisfied the parties were in a spousal relationship, it found the applicant did not satisfy the criteria for the grant of the visa and affirmed the delegate’s decision to refuse the application: Reasons, [54]-[60].
[10] Act, s 5F(2)(b)-(c).
[11] Act, s 5F(2)(d).
Procedural history
On 6 October 2017, the applicant commenced a proceeding for judicial review. The applicant also swore an affidavit on that same day, to which he annexed a copy of the Tribunal’s decision.
While the orders made on 13 June 2018 afforded the applicant an opportunity to file and serve an amended application, evidence and written submissions, he did not do so. The Minister’s submissions were responsive to the grounds of review as stated in the application.
Judicial Review
If the Tribunal’s decision was a privative clause decision[12], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[13] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[14] Whether it should do so is a separate issue.
[12] Act, s 474(2).
[13]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[14] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[15] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[15]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[16] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[17] The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of a Partner visa are satisfied.
[16]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[17] Act, s 65(1)(a).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[18]
[18]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
Partner visas
The Regulations may prescribe criteria for the grant of a visa and that a visa of a specified class may only be granted in specified circumstances.[19] The power conferred by s 65 to grant or refuse a visa application must be exercised in accordance with any applicable Regulations under the Act.[20] Part 1 of Sch 1 of the Regulations concerns the subject, Permanent visas. Within Part 1, cl 1124B identifies the manner in which an application for a permanent Partner (Residence) (Class BS) visa may be made. Part 2 of Sch 1 concerns the subject, Temporary visas. Within Part 2, cl 1214C identifies the manner in which an application for a Partner (Temporary) (Class UK) may be made.
[19] Act, sub-s 31(3), 40(1).
[20] Act, s 498.
The primary criteria prescribed for a Partner visa are located in Sched 2, Subclass 801. Clause 801.21 identifies the criteria for a Partner visa which are to be satisfied at the time of application. Relevantly, sub-cl 801.211(1)(b) prescribes that an applicant must meet the requirements of sub-cll (2), (5), (6), (7), (8) or (9). In particular, sub-cl 801.211(2) prescribes criteria that a person must meet to satisfy the requirements of that sub-clause, including that they were the spouse of a person who was an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
Clause 801.22 identifies the criteria for a Partner visa which are to be satisfied at the time of decision. Clause 801.221 prescribes that the criteria to be satisfied at the time of decision including that, in relation to an applicant who satisfied sub-cl 801.211(2), they continued to meet the requirements of that provision.[21]
[21] Regulations, Sch 2, par 801.221(1)(a).
The term spouse is defined by s 5F which relevantly provides that for the purposes of the Act, a person is the spouse of another person if, under sub-s 5F(2), the two persons are in a married relationship.[22] Sub-section 5F(2) provides:
[22] Act, sub-s 5F(1).
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
The Regulations may make provision in relation to the determination of whether one or more of the conditions in pars 5F(2)(a)-(d) exist and may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.[23] Regulation 1.15A, which was made under s 5F(3), prescribes criteria for the purposes of determining whether one or more of the conditions in s 5F(2) exist. In He v Minister for Immigration and Border Protection,[24] the Full Court held that an administrative decision-maker was obliged to consider “each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3) and any other relevant circumstances of the relationship.”
[23] Act, sub-s 5F(3).
[24] (2017) 255 FCR 41, [50].
However, the reasoning in He makes clear that the decision-maker might properly consider that a particular matter was not relevant or that there was no evidence on which a particular finding could be made. Further, the Full Court did not accept that the Tribunal was required to make a finding as to the existence or otherwise of every potentially relevant circumstance. The Tribunal was only required to make any necessary findings of fact.[25] The content of the obligation to make necessary findings of fact is then informed by the imperative terms in which reg 1.15A(2)-(3) are expressed.
[25](2017) 255 FCR 41, [71].
Consideration
As the applicant was self-represented before me, I have re-examined the materials comprised in the court book, the Reasons, the grounds of review and the applicant’s supporting affidavit. The application for judicial review contains nine grounds which are in many respects unclear or overlapping. Two preliminary observations may be made.
First, the tenor of many of the allegations is that the Tribunal either failed to consider evidence or documents or failed to afford the applicant an opportunity to adduce such evidence. Those complaints are to be gauged against the history of the matter including that although the Tribunal acceded to the applicant’s requests for an extension of time, no further information was provided and such information as was attached to the visa application did not address the requirements for information of the kind which may have assisted in the determination of whether the application and sponsor were in a spousal relationship. Further, before me, the applicant was afforded an opportunity to address the matter both before and after the Minister’s submissions had been given. On each occasion the applicant advised that he had nothing to add. The adoption of that stance is consistent with his decision not to file any submissions.
Secondly, the grounds of review were expressed at such a level of generality that the court was left to discern for itself the existence of jurisdictional error. In WZAVW v Minister for Immigration and Border Protection[26] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
Notwithstanding those principles, it is appropriate to consider the Reasons and grounds of review and to assess whether they are arguable.
[26][2016] FCA 760, [35] (citations omitted); see also MZARG v Minister for Immigration and Border Protection [2018] FCA 624, [25], (McKerracher J).
Ground 1: procedural fairness
Ground 1 contends that the applicant was denied procedural fairness by the Tribunals failure “to have regard to relevant documents and its failure to provide reasonable opportunity to respond to my relationship with my Australian Partner, it is totally not fair”.
The applicant provides no particulars as to how he alleges that the Tribunal failed to comply with its statutory procedural fairness obligations under Div. 5 Pt 5 of the Act. He identifies no relevant documents that form the basis of the ground. Nor does he identify any basis for contending that he was not afforded a reasonably opportunity to address the issue of his spousal relationship.
I am satisfied that the Tribunal complied with its obligations of procedural fairness. No information or documentation was provided by the applicant to the Tribunal despite being afforded an extension of time in which to do so. It was not for the Tribunal to make the applicant’s case for him,[27] but rather for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations had been met to enable the Tribunal to reach the requisite state of satisfaction.[28]
[27]Abebe v The Commonwealth (1999) 197 CLR 510, [187]; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 176.
[28]Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, [76].
Having regard to my consideration of the matter above, I agree in the submission that in the absence of particulars, this ground must fail.
Ground 1 is rejected.
Grounds 2 and 6: failure to consider material
Ground 2 contends that the applicant “was at all times entitled to a spouse visa in Australia having fulfilled the criteria contained in the Migration Act” but that the Tribunal “did not regard material before the member”. Similarly, Ground 6 contends that the Tribunal “erred by failing to consider the all evidence that I had submitted to the Tribunal (sic)” and asked the rhetorical question “without having evidence before the tribunal how come tribunal come to decision (sic)”?
The applicant does not identify the material that was supposedly not considered by the Tribunal. The Tribunal’s Reasons demonstrate that it considered all such documentation as was before it: Reasons, [19]-[20].The applicant was afforded an opportunity to provide any further information that he may have wished the Tribunal to consider in response to the invitation during the prescribed period, as well as the extended period provided by the Tribunal when the request for an extension was made. He did not do so. In the circumstances, s 359C applied and the Tribunal was entitled to proceed to make its decision under s 359C(1).
While the combined effect of s 360(3) and s 363A was that the Tribunal did not have power to permit the applicant to appear at an oral hearing,[29] there is no suggestion that the applicant in fact sought such a hearing. While the fact of such a request would have been irrelevant to the question of the Tribunal’s power to accede to it, the absence of any request undermines the force of the complaint now made.
[29] Hasran, (2010) 183 FCR 413.
Grounds 2 and 6 are rejected.
Ground 3: spousal relationship
By Ground 3, the applicant contends that:
The Tribunal has erred when it upheld the immigration decision disallowing evidence of Genuine relationship because it had not first found a spousal relationship to have existed but by doing so shut its mind to the question of how might there be other documents which have been provided to Immigration and Tribunal in the absence of a spousal relationship. Our marriage is genuine but tribunal and Immigration were in rush, I have to wait for long but tribunal doesn’t give an opportunity to provide information is totally against the assessing regulations (sic).
This is not a proper ground of review. To the extent that the applicant contends that the Tribunal shut its mind to the merits review of the decision and may be understood as alleging bias, no proper basis is shown for it. An allegation of bias is a serious matter that must be firmly and distinctly made and clearly proven.[30]
[30] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531
The applicant has not identified any conduct on the part of the Tribunal that would support any allegation of actual or apprehended bias. Nor has he filed any evidence in support of this bland assertion and no inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[31] His assertion that the Tribunal decision was rushed is unsupported and without basis. I agree that the Tribunal provided an evident and intelligible justification[32] for its decision to dismiss the application.
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286, [3]
[32] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76]
Ground 3 is rejected.
Ground 4: failure to advise
Ground 4, although unclear, appears to contend that the applicant was never advised by the Tribunal of the time-frame to submit documents and that he should have been given an opportunity to give evidence at hearing. Paragraph 3 of the applicant’s affidavit attempts to support this ground by stating “due to exceptional circumstances I could not submit evidence at the hearing before hearing, also there was lack of knowledge as well.” The affidavit does not expand upon what was meant by this statement.
The Tribunal’s invitation to provide further information pursuant to s 359(2) gave a clear date for the provision of the required information (being 11 April 2017). This date was extended at the request of the applicant’s representative to 26 April 2017 in accordance with s 359B(4) and reg 4.18A(4). No information was provided by the applicant and, pursuant to ss 360(3) and 363A of the Act, the applicant was consequently no longer entitled to appear before the Tribunal and the Tribunal had no power to permit the applicant to appear.[33]
[33] Hasran, (2010) 183 FCR 413.
Ground 4 is rejected.
Ground 5: right of review
Ground 5 merely states that the applicant has a right of review to the Federal Circuit Court and is not a proper ground of review.
Ground 5 is rejected.
Ground 7: Tribunal’s power
Ground 7 contends that “[t]he Tribunal has the power to rectify administrative error that may contaminate a primary decision … however, such power has not been utilized with mandatory legislative procedures . . .” No particulars as to the purported administrative error of the delegate have been provided to make this complaint meaningful. The Tribunal conducted the review as required by s 348(1) and no error is revealed.
Ground 7 is rejected.
Ground 8: merits review
Ground 8, although unclear, appears to contend that the Court should take into account the fact that the applicant is “looking after all wellbeing of children and my wife (sic)”. This ground does no more than seek impermissible merits review.
Ground 8 is rejected.
Ground 9: delegate’s decision
Ground 9 states that “she believes that Immigration officer has taken the decision has a jurisdictional error by failing to exercise jurisdiction (sic)”. Insofar as this ground of review appears to take issue with the decision of the delegate, the court has no jurisdiction to review the delegate’s decision. This ground must fail: s 476(2)(a).
Ground 9 is rejected.
Conclusion
The application for judicial review must be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.
Date: 13 June 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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