SINGH v Minister for Home Affairs

[2018] FCCA 1389

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1389

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal failed to take into account all of the applicant’s claims – whether the Tribunal exercised its jurisdiction in an unreasonable manner – no jurisdictional error made out – amended application dismissed.

Legislation:
Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), cl.820.211

Cases cited:

Pierre Henri Fuduche v the Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503

Applicant: MANPREET SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 9 of 2018

Judgment of: Judge Street

Hearing date: 29 May 2018

Date of Last Submission: 29 May 2018

Delivered at: Sydney

Delivered on: 29 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Solicitors for the Respondents: Mr J Pinder
MinterEllison

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 9 of 2018

MANPREET SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant was found to be a citizen of India who arrived in Australia on 24 August 2008 on a Student (subclass 572) visa and was subsequently granted a Skilled Graduate (subclass 485) visa as a dependent on 20 October 2011. That visa ceased on 20 April 2013. On 24 March 2013, the applicant lodged an unsuccessful application for a Temporary Work (Skilled) subclass 457 visa and subsequently lodged an unsuccessful application for judicial review. On 17 December 2015, the applicant lodged an application for a partner visa which was sponsored by his wife.

3. On 2 December 2016, the delegate refused the grant of the partner visa. The delegate found the applicant failed to satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because he did not satisfy the Schedule 3 Criterion 3001 of the Regulations and the delegate was not satisfied there were compelling reasons for not applying those criterion when the applicant’s last substantive visa expired on 20 April 2013.

The Tribunal

1. The applicant applied for review on 12 December 2016. By letter dated 30 October 2017, the applicant was invited to attend a hearing on 23 November 2017. The applicant appeared on that date to give evidence and present arguments and also had evidence adduced by his sponsor.

2. The Tribunal identified the background to the application for review. The Tribunal identified the relevant criteria under cl 820.211(2)(d) of the Regulations and referred to the fact that with limited exceptions the applicant had to satisfy the Schedule 3 Criterion 3001 of the Regulations and other criteria unless the Minister was satisfied there were compelling reasons for not applying those criteria under cl 820.211(2)(d) of the Regulations. The Tribunal found the applicant’s last substantive visa had expired on 20 April 2013 and that accordingly, the Tribunal had to consider whether there were compelling reasons for not applying the Schedule 3 criterion of the Regulations.

3. The Tribunal turned to the issue of compelling reasons. The Tribunal identified that the applicant had provided the Tribunal with copies of medical certificates provided by the sponsor’s treating doctors and referred to the sponsor’s history of prescriptions dispensed from the beginning of 2015 until 6 November 2017 and identified copies of prescriptions and pharmacy receipts. The Tribunal expressly referred to the medical reports provided by the sponsor’s consultant psychiatrist that stated the sponsor was referred to him on 10 May 2017 and had seen her nearly every four to eight weeks for supportive psychotherapy and monitoring of her major depressive disorder. The report noted that she was always accompanied by her husband who is her carer and supervises her medications. The Tribunal noted that the report referred to the sponsor’s medical history which indicates she suffers from chronic illnesses including insulin dependence diabetes, chronic back pain, a problem with her knees, colic and urinary infection, obesity, and depression and anxiety disorders. The report found the applicant’s sponsor suffers from a moderate degree of disability as a result of her chronic medical conditions. The Tribunal also referred to a letter from the sponsor’s GP dated 6 November 2017, which the Tribunal noted referred to the same conditions. The Tribunal referred to a report from an endocrinologist dated 7 November 2017, which referred to the diabetes being poorly controlled and that the applicant assists the sponsor manage her diabetes.

4. The Tribunal referred to other material that was provided and in particular the applicant’s statement that the parties do not want to separate during the golden time of their lives, referring to the sponsor’s serious medical condition and that her treatment in India would be very expensive, and that a major upheaval could affect the sponsor and that in the applicant’s view the first few years of the relationship lay the foundations for the future and that the sponsor had not been receiving benefits since they were married.

5. The Tribunal also referred to the applicant submitting a statement from the sponsor which indicated that she will struggle to cope without the applicant. The Tribunal noted this referred to the medical records provided. The sponsor also referred to her past and the applicant’s help given to the sponsor ensuring she attends appointments, takes her medication and takes her for a walk. The statement also referred to the sponsor’s sense of safety and security through the relationship and that she is unable to work because of her medical conditions and that her husband supports her financially. Reference was also made by the Tribunal to the verbal, emotional, physical and financial support provided by the applicant.

6. The Tribunal then referred to the evidence adduced at the hearing. The Tribunal noted that the applicant talked about the sponsor’s medical conditions and that it will be difficult for her to manage them while she is living in shared accommodation and the difficulty she had managing them while she was living in shared accommodation before they were married. Reference was made to the fact that the applicant explained while the sponsor can take her medication herself, she often forgets. Reference was also made to the depression and anxiety as well as the sponsor’s family.

7. The Tribunal noted in relation to the sponsor’s medical issues that the applicant stated they were diagnosed in 2017 and although the sponsor had seen a psychologist before because of problems that were occurring in her family, she was more recently referred to a psychiatrist. The Tribunal referred to the applicant taking the sponsor to and attending her medical appointments and talking to her doctors about her medical conditions and ensuring she adheres to her medication regime. The Tribunal referred to the applicant working full‑time and the applicant’s concern that if he was required to depart Australia that the sponsor would be forced to move into shared accommodation and she would not be able to afford to live on her own and the applicant was very concerned that her health would deteriorate. Reference was made to the sponsor’s family and the fact that the sponsor does not want to go to India with the applicant if he is required to return.

8. The Tribunal noted that the sponsor told the Tribunal her health deteriorated a few years ago and that she was diagnosed with a diabetic condition around 2014 and referred to the sponsor’s depression and anxiety when her sister passed away and that her sister had diabetes, and that an aunt had passed away at a similar time. The Tribunal referred to the sponsor having six brothers and three sisters. The Tribunal noted the sponsor’s mother and most of her family live around the Tempe/Alexandria area.

9. The Tribunal referred to the sponsor having been informed by her doctors that she should not go to India because of the pollution. The Tribunal also raised in the course of its reasons the sponsor’s previous travel which identified that she travelled overseas in 2012, 2013 and relevantly in 2015 without the applicant.

10. The Tribunal referred to having considered the applicant’s claims about the parties’ relationship and whether they provide a compelling reason not to apply the Schedule 3 criterion of the Regulations. The Tribunal expressly referred to the Explanatory Statement to the extent that it is relevant to the circumstances of the applicant and sponsor. The Tribunal expressly acknowledged that a longstanding relationship can be sufficient to establish a compelling reason. The Tribunal was prepared to accept that the parties met in April 2015 and subsequently married in November 2015, resulting in them having been in a relationship for over two years at the time of the decision. The Tribunal found that the longevity of the relationship was not a compelling reason not to apply the Schedule 3 criterion of the Regulations. The Tribunal also noted there were no children from the relationship.

11. The Tribunal expressly referred under the heading “The sponsor’s medical conditions”, to having considered the information and evidence put forward in relation to the sponsor’s medical conditions. The Tribunal referred to the nature of those conditions. The Tribunal had regard to the fact that the sponsor’s medical conditions are all being treated by various doctors that she sees and that she takes pain relief and other medication, including for her diabetes and that the sponsor is able to take these by herself. The Tribunal recognised the applicant’s support of the sponsor in attending medical appointments. The Tribunal found there was no evidence presented to the Tribunal that the sponsor cannot attend the appointments without him. The Tribunal also took into account that most of the sponsor’s medical conditions were diagnosed prior to the sponsor meeting the applicant and marrying the applicant. The Tribunal took into account that the sponsor can manage on her own even though she may prefer the applicant’s support and benefits from the applicant’s support.

12. The Tribunal also expressly took into account that the sponsor had travelled overseas on a number of occasions and referred to the occasion when the applicant did not accompany the sponsor in 2015. The Tribunal also expressly referred to the more recent referral to a psychiatrist and found the sponsor continued to see the psychiatrist and avail herself of treatment, although the Tribunal recognised that the sponsor may see value in being accompanied by the applicant. The Tribunal was not satisfied the sponsor’s medical conditions provide a compelling reason not to apply the Schedule 3 criterion of the Regulations. The Tribunal referred to the financial circumstances and did not consider the change in the financial circumstances and living arrangement amounts to hardship such that it provides a compelling reason not to apply the Schedule 3 criterion of the Regulations.

13. The Tribunal referred to the submissions concerning the golden times in the parties’ lives and was of the view that the parties could continue to support each other during a temporary absence and that in any genuine relationship the parties would put the effort in to do so. The Tribunal also expressly referred to the positive effect of the applicant upon the sponsor’s morale and confidence. The Tribunal took the view that the parties could continue to build and strengthen their relationship through electronic means that are available. The Tribunal was not satisfied that the parties desire to build their relationship provided a compelling reason not to apply the Schedule 3 criterion of the Regulations.

14. The Tribunal took into account the sponsor’s concerns about going to India and did not consider the security situation a compelling reason to waive the Schedule 3 criterion of the Regulations. The Tribunal expressly referred to considering the overall assessment including the long term relationship and the temporary absence of the applicant having an adverse impact on the relationship, as well as that the sponsor’s depression and anxiety will worsen and that the sponsor will be affected negatively physically, emotionally and economically if the applicant is unable to look after the sponsor including in relation to her medical conditions and medications.

15. The Tribunal referred to the matters cumulatively and was not satisfied they provide compelling reasons not to apply the Schedule 3 criterion of the Regulations and accordingly, affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The Tribunal erred by failing to take into account all of the claims made by the Applicant.

   Particulars

   The Tribunal failed to take into account expert medical opinion in support of a claim that the Applicant’s spouse’s mental and physical health would deteriorate significantly without the support and presence of the Applicant.

   2. The Tribunal purported to exercise its jurisdiction in a manner that was unreasonable.

   Particulars

   a) The Tribunal acknowledged that a long-standing relationship could on its own be a compelling reason for not applying the criteria in Schedule 3, but then rejected that claim without any evident or intelligible justification.

   b) The Tribunal’s assumption that because the spouse’s medical conditions had been diagnosed before she met and married the Applicant she could then manage them on her own without him had no rational or reasonable basis.

Ground 1

1. Mr Jones, solicitor for the applicant, in relation to ground 1, submitted that there was a thread from the three reports which, as set out as follows, were not taken into account by the Tribunal. Mr Jones referred to Dr Kok’s endocrinologist report:

   If her husband is not with [the sponsor], my opinion is that her medical condition will deteriorate and her health will suffer.

2. Mr Jones referred to the report of general practitioner Dr Jirjis, as follows:

   It will be very difficult for [the sponsor] to cope by herself without her husband.

3. Mr Jones referred to the report of consultant psychiatrist and psychotherapist, Dr Way, as follows:

   It is my opinion that [the sponsor’s] mental state is likely to deteriorate significantly and her other medical conditions, including diabetes mellitus, become destabilised without the support and supervision consistently provided by her husband.

4. The Tribunal’s reasons, as summarised above, reflect an active intellectual engagement with the substance of the medical evidence provided in support of the sponsor’s condition and do not support a conclusion that the Tribunal failed to take into account the whole of the applicant’s claims or failed to take into account the doctors’ opinions. A fair reading of the Tribunal’s reasons as a whole reflects the Tribunal giving close attention to the sponsor’s medical conditions and the contention that the departure of the applicant would have an adverse impact on the sponsor’s medical conditions. The Tribunal provided logical and rational reasons as to the sponsor’s ability to cope without the applicant as summarised above, including the onset of her medical problems before she met the applicant, and her ability to take medications herself, and found the sponsor could manage on her own and continue to avail herself off treatment and seeing the psychiatrist. There is no failure by the Tribunal to take into account a claim advanced by the applicant.

5. Insofar as Mr Jones referred to the decision of Pierre Henri Fuduche v the Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503, that case is clearly distinguishable from the present. The Tribunal did not reject the medical evidence. On a fair reading, the Tribunal took into account the medical evidence. That decision does not assist in making out any jurisdictional error. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2(a), Mr Jones submitted that the Tribunal had erred in its reasoning in concluding that the longstanding relationship could not on its own provide a compelling reason and that the finding by the Tribunal in that regard was legally unreasonable. Mr Jones submitted that the finding by the Tribunal that the duration of the relationship did not provide a compelling reason was a bare finding, unsupported by any reasoning. The Tribunal’s reasons are not to be read with a keen eye for error. It is apparent that the Tribunal provided detailed reasons in relation to the nature of the relationship and the help provided by the applicant to the sponsor as well as the sponsor’s ability to cope on her own both prior to the relationship and in relation to the evidence given by the sponsor. The Tribunal also took into account the sponsor’s ability to travel overseas without the applicant.

2. The Tribunal’s reasons, as summarised above, reflect taking into account the proposition that a longstanding relationship may of itself give rise to a compelling reason to not applying the Schedule 3 criterion of the Regulations. It is apparent that the Tribunal on a fair reading has taken into account all the circumstances identified in the Tribunal’s reasons in concluding that the duration of the relationship in the present case did not provide a compelling reason not to apply the Schedule 3 criterion of the Regulations. It was open to the Tribunal to do so.

3. I reject the submission that the Tribunal’s reasons failed to provide an evident and intelligible justification for the adverse finding in relation to the duration of the relationship. The reference by the Tribunal to the parties having failed to satisfy the Tribunal that the longevity of the relationship is a compelling reason must be read in the context of the reasons provided by the Tribunal in relation to that relationship. There is no legal unreasonableness by the Tribunal in concluding that the circumstances of the present case that longevity gives rise to a compelling reason. No jurisdictional error as alleged in relation to ground 2(a) is made out.

4. In relation to ground 2(b), Mr Jones submitted that the Tribunal’s reference to the applicant having been able to cope before she met the sponsor was an illogical consideration to take into account in relation to assessing the sponsor’s medical conditions. Mr Jones submitted that there was a lack of specificity in the reference to the medical conditions and argued that it was illogical to take that matter into account in determining whether or not there were compelling reasons not to apply the Schedule 3 criterion of the Regulations. Mr Jones also submitted that the Tribunal’s reasons in this regard lacked an evident and intelligible justification. The ability of the sponsor to cope in relation to the majority of her medical conditions prior to encountering the applicant was a logical, rational and reasonable matter for the Tribunal to take into account in determining the impact of the medical conditions and potential consequence of the applicant having to leave Australia.

5. There is no irrational or unreasonable reasoning by the Tribunal in relation to finding that the sponsor’s medical conditions did not constitute compelling reasons for not applying the Schedule 3 criterion of the Regulations. The reference to the sponsor’s ability prior to meeting and marrying the applicant having been diagnosed with most of her medical conditions was a rational and logical basis for the Tribunal to find that the sponsor can manage on her own, even though she may prefer to have the support and benefits of having the applicant present. That finding was open on the evidence as summarised above. No jurisdictional error as alleged in ground 2(b) is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  17 July 2018