Singh v Minister for Home Affairs
[2022] FedCFamC2G 965
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Home Affairs [2022] FedCFamC2G 965
File number(s): ADG 19 of 2019 Judgment of: JUDGE YOUNG Date of judgment: 18 October 2022 Catchwords: MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal affirming the delegate's decision to refuse a Partner visa - where the applicant did not satisfy schedule 3 criteria Legislation: Migration Act 1958 (Cth) ss 375A, 359A
Migration Regulations 1994 (Cth) sch 2, 3
Cases cited: Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 18 October 2022 Place: Darwin The Applicant: Appearing on his own behalf Solicitor for the Respondents: Mr Retallick for the Australian Government Solicitor ORDERS
ADG 19 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEJPREET SINGH
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
18 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application filed on 17 January 2019 be dismissed.
2.The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Ex TemporeJUDGE YOUNG
This is an application for a judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 December 2018 to affirm a decision of the Minister’s delegate made on 6 June 2014 to refuse the applicant a partner or spouse visa.
The matter has a reasonably complex history. The decisions of the respective Tribunals have been quashed on two occasions by this Court, it seems following a decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, which meant that in assessing the existence of compelling reasons, matters postdating the application may be taken into account. The application for review of the delegate’s decision made on 6 June 2014 was heard by a Tribunal which affirmed the delegate’s decision on 12 May 2015. The applicant applied for a review of that decision in the (then) Federal Circuit Court. On 8 April 2016 the decision of the Tribunal on 12 May 2015 was remitted by consent to a second Tribunal following the decision in Waensila. The second Tribunal made a decision on 14 September 2016 affirming the delegate’s decision. That decision was subsequently quashed by consent after it was conceded by the Minister that a certificate under section 375A the Migration Act 1958 (Cth) (“the Act”) was invalid. The matter was then remitted to a third, reconstituted Tribunal on 17 December 2018.
The third Tribunal decision affirmed the decision of the delegate, for somewhat different reasons. The decision of the delegate was made applying, more or less, the same statutory provisions under which the most recent Tribunal decision was made. However, the delegate, rather than considering the question of whether there were compelling reasons to waive the applicant’s non-compliance with the time provisions for application, decided the matter on the substantive basis that the delegate was not satisfied that the applicant and the sponsor were in a de facto relationship.
Each of the Tribunal decisions has focused, not on the existence of a de facto relationship per se, but the question of whether or not there were compelling reasons to waive a requirement, given that the applicant had not complied with the requirements in Schedule 3 criteria 3001, 3003 and 3004 of the Migration Regulations 1994 (Cth) (“the Regulations”). Schedule 3 criterion 3001 states that any application for a partner visa must be made within 28 days of the applicant having held a substantive visa. At the time the applicant applied for a partner visa, on 1 May 2012, his previous substantive visa, a student visa, had been expired since 27 October 2010. It was clear that he was unable to satisfy the criteria in Schedule 3 of the Act as to any application being required to be made within 28 days of the expiry of a substantive visa. The question, therefore, became whether or not there were compelling reasons to waive the requirements, pursuant to Schedule 2 clause 820.211 of the Regulations.
The factual background to the matter is that at the time the applicant applied for the visa, he said that he was in a relationship with a person whom I will call “Ms M”. He said, and has subsequently continued to say, that he continues to be in a de facto relationship with Ms M and that he and Ms M have a child, whom I will call “T”, who is now 10 years old.
The Tribunal was not satisfied that there were compelling reasons to waive the requirements of Schedule 3. In particular, the Tribunal was not satisfied that there was evidence that the applicant was still living with Ms M or that he had ever lived with her. The Tribunal was not satisfied that the applicant was in fact the father of T and the Tribunal pointed particularly to the lack of any formal evidence to support this, for example DNA evidence. There was also no evidence that the applicant was involved in the day to day care of T which lead to the conclusion that the Tribunal was not satisfied that the applicant was the biological father of the child.
A matter that was of particular concern to the Tribunal was the failure of Ms M to give evidence before any of the Tribunals or the delegate, in circumstances where it was obvious that a crucial factor in assessing the applicant’s claims was whether he was, in fact, in a de facto relationship with Ms M. The Tribunal inferred, from the repeated requests the applicant said he made for to Ms M to appear and her failure to do so, that she was not in a relationship with the applicant.
The applicant’s grounds of review essentially take issue with the approach and many of the conclusions of the Tribunal. I will endeavour to give a summary of each ground rather than read the whole of the grounds, which are apparently self-drafted and somewhat difficult to follow.
Ground 1 claims that the Tribunal committed jurisdictional error because it decided the matter solely on the basis that the applicant did not fulfil the Schedule 3 criteria. As far as I can understand, having regard to the oral submissions that the applicant made to me, he intends to convey by that claim the assertion that the delegate decided the matter on a slightly different basis. That is, the delegate was not satisfied the applicant was actually in a de facto relationship, whereas the Tribunal approached the matter on the basis of the applicant’s failure to fulfil the Schedule 3 criteria as to time limits. In my view, that is not a ground of jurisdictional error.
Where there are effectively factors that would result in the failure of a claim or the disallowance of a claim, a number of which might be chosen by a decision-maker, it appears to me that the decision-maker can decide on any of the available bases, if one of those bases must mean that the application fails.
Grounds 2, 3 and 4 appear to me to raise a similar argument. The applicant asserts that, as the delegate decided the matter on a different basis, the Tribunal ought not to have decided the matter on what he says was a new ground. For the reasons I have already given, it appears to me that argument is misplaced.
Ground 5 seems to raise a similar argument. The final sentence of ground 5 reads:
The tribunal failed altogether to adjudicate if the applicant fulfilled the clause 820.211(2)(a), which was the bone of contention.
This is a reference to the criterion of whether or not the applicant is the spouse or de facto partner of the relevant person, being the sponsor. It is true that the Tribunal failed to do that, but the Tribunal was free, subject to the requirements that I have mentioned, to do precisely as it did. That is, finding that the applicant had failed to satisfy the Schedule 3 requirements as to timely application and ask itself whether there were compelling reasons to waive those requirements. Again, that appears to be another way of raising the complaints in grounds 1, 2, 3 and 4.
Ground 6 asserts that the Tribunal committed jurisdictional error by failing to obtain evidence of its own motion. In particular, the applicant says that he was unable to provide evidence from Centrelink or South Australian Housing because of privacy requirements and the Tribunal failed to take account of the fact that he was unable to provide such evidence. Whether or not there was such evidence to obtain may be doubted. I am not satisfied that the Tribunal had any obligation to obtain such evidence if that is what is being suggested in the ground. Broadly speaking, it is up to the applicant to bring forward evidence that satisfies the decision maker that he fulfils the requirements of the appropriate visa. As I read the decision of the Tribunal, the applicant’s failure to provide evidence from Centrelink or South Australian Housing was not determinative of the outcome and, if it was an error, I do not consider it was material.
Ground 7 asserts that the Tribunal committed jurisdictional error by its approach to the applicant’s failure to obtain evidence of his paternity of T. The applicant argues that he was never in a position to obtain DNA testing of T because the mother would never agree. In my view, the Tribunal was entitled to approach that question in the way it did. If the applicant is the biological father of the child, it must have been obvious to him that that question was one of the utmost significance in his application. There is no reason he advances why, for example, he could not have obtained an order for DNA testing from the Federal Circuit and Family Court of Australia. I might say that this issue arises because the applicant is not named on the child’s birth certificate. In my view, the Tribunal was entitled to give the fact that the applicant had failed to provide any independent evidence of paternity as a matter of real importance.
Ground 8 says the Tribunal made a jurisdictional error by stating that the applicant did not have a significant relationship with the child or was involved in the child’s upbringing. The Tribunal said there was no evidence that he was involved in the day-to-day care of the child and, as far as I am aware, there was no such evidence. The applicant says that the kindergarten refused to provide him with records and that the Tribunal could have obtained the records in those circumstances. Again it appears to me the applicant was in a position where he could have taken steps to obtain such records if he wished. It also is implausible, if the two parents of a child wish to provide evidence to a Tribunal that one of those parents was involved in the day-to-day care of the child that that could not be provided. The mere fact that it is not provided, in my view, provides more than ample justification to the Tribunal to doubt, as it clearly did, the applicant’s assertions.
In ground 9 the applicant asserts that the Tribunal committed jurisdictional error by failing to request evidence about the sponsor’s various medical conditions which prevented her from attending the hearings. As noted, the sponsor failed to attend any hearing before a Tribunal or the delegate and there is little explanation as to why. The applicant said in his grounds of review, and also in oral submissions, that the sponsor is a user of drugs, which I took to mean illicit drugs. In the ground of review he also says that she is addicted to alcohol. The obligation of the applicant is to bring forward material that shows he satisfies the criteria for the grant of a visa. In circumstances where the sponsor refuses or is incapable of cooperation, if that is the case, then it is for the applicant to take what measures he can to remedy that. The explanation is simply implausible, and the Tribunal is justified in reasoning the way it did.
Ground 10 claims that the Tribunal committed error by failing to consider other evidence provided by the applicant, including photos with his wife and son, joint purchases and bank accounts, joint invitations and the like. The last joint bank account, of which there is evidence, appears to have been closed in August 2016, more than two years before the Tribunal hearing. The evidence of the bank accounts is not evidence that at the time of the hearing the applicant was in a de facto relationship with Ms M. Similarly with the other documents, they may be consistent with the applicant having been in a relationship with Ms M at some point, but they were certainly not cogent evidence that he was at the time of the Tribunal hearing, particularly when Ms M failed to appear.
Ground 11 asserts that the Tribunal failed to comply with section 359A of the Act by failing to give clear particulars to the applicant of information which may be a ground for affirming the decision under review. The applicant was unable to point to any such information. The ground of review appears to assert that the relevant information that was not provided was the provisions and regulations, evidence and facts which were being taken into account. I am satisfied that it was clear to the applicant that the issue for consideration was whether or not there were compelling reasons under clause 820.211(2)(d)(ii) to waive the requirements of Schedule 3. So much must have been clear to the applicant from the Tribunal decision of 12 May 2015, the Tribunal decision of 14 September 2016 and the Tribunal decision of 17 December 2018, each of which considered the question of whether there were compelling reasons to waive the requirement under Schedule 3. As much must have been clear to the applicant at the hearing of this matter because, at paragraph 26, the Tribunal says:
In this case, Mr Singh submits there’s compelling reasons for waiving the Schedule criteria, that he and Ms M love each other and that he does not want to be separate from T who he says is his biological child.
I do not accept that section 359A of the Act requires the Tribunal to put any legislative framework or provisions to the applicant or alert him to the case that he must make out. I am satisfied that he was fully aware of that. There is no other information that the applicant pointed to which might come within the purview of section 359A. None of the grounds are made out. The application is dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 11 November 2022
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