Singh v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2023] FCA 1371

Appeal from: Singh v Minister for Home Affairs & Anor [2020] FCCA 600
File number: ACD 10 of 2020
Judgment of: THOMAS J
Date of judgment: 9 November 2023
Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court of Australia (FCCA) – where FCCA dismissed application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed decision of delegate of Minister to refuse to grant a partner visa – where Tribunal found that requirements in Item 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) were not satisfied – whether FCCA erred in not finding that Tribunal’s assessment and reasoning process regarding compelling reasons was erroneous – whether FCCA erred in not finding that Tribunal acted unreasonably in not giving adequate weight to health condition of sponsor – whether FCCA erred in not finding that Tribunal failed to take relevant considerations into account – no errors made out – appeal dismissed
Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)
Cases cited:

Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12

MZYPZ v Minister for Immigration and Border Protection (2012) 127 ALD 510; [2012] FCA 478

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Singh v Minister for Home Affairs & Anor [2020] FCCA 608

SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 57
Date of hearing: 21 November 2022
Counsel for the Appellant: The Appellant was self-represented (with the assistance of an interpreter and, with the leave of the Court and the first respondent, his wife, Ms Sharma)
Counsel for the First Respondent: Mr B Kaplan
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

ACD 10 of 2020
BETWEEN:

GUPREET SINGH

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

THOMAS J

DATE OF ORDER:

9 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THOMAS J:

INTRODUCTION

  1. This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA). The FCCA dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (

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Details
Case
[2023] FCA 1371
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Singh, an Indian citizen, challenged the Federal Circuit and Family Court of Australia's (FCFCA) decision to dismiss his application for judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the Minister's refusal to grant him a partner visa. The Minister had refused the visa on the basis that Mr Singh did not satisfy the requirements in Item 3001 of Schedule 3 to the Migration Regulations 1994 (Cth). The primary judge dismissed the appeal, and Mr Singh now appeals to the High Court. The appeal raises questions about whether the AAT's assessment of compelling reasons was erroneous, whether the AAT gave adequate weight to the health condition of the sponsor, and whether the AAT failed to take relevant considerations into account.

The appeal's grounds focus on the AAT's assessment of compelling reasons, the sponsor's health condition, and the weight given to these factors. Ground 1 alleges that the AAT erred in its assessment and reasoning process regarding compelling reasons. Ground 2 alleges that the AAT acted unreasonably by not giving adequate weight to the health condition of the sponsor. Ground 3 alleges that the AAT failed to take relevant considerations into account. The High Court considered these grounds in light of the AAT's decision and the relevant statutory provisions.

The High Court found that the AAT's assessment of compelling reasons was not erroneous. The AAT considered various factors, including the genuineness and longevity of the relationship, the sponsor's health conditions, difficulties in India, mental health, and the effect of separation on the relationship. The AAT found that none of these factors amounted to compelling reasons. The AAT also considered the sponsor's health condition and found that it did not compel the application of Item 3001. The High Court held that the AAT's assessment and reasoning process was not erroneous and that it gave adequate weight to the relevant considerations.

The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent. The High Court found that the AAT's decision was not flawed and that the appeal did not raise any valid grounds for review. The Minister's decision to refuse the partner visa was upheld, and Mr Singh's appeal was unsuccessful.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, the appeal should be dismissed.BACKGROUND Mr Singh is a citizen of India who arrived in Australia on 21 June 2009 on a Student visa (subclass 571). On 20 December 2011, the Tribunal affirmed a decision of a delegate of the Minister to cancel that visa. That was the last substantive visa that Mr Singh held. He then remained in Australia for a further five years before filing a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa on 20 February 2017. For most of those intervening five years, Mr Singh was in Australia without a valid visa. The partner visa application was sponsored by Mr Singh’s wife, Ms Harpreet Sharma. On 25 May 2017, a delegate of the Minister refused to grant a Subclass 820 visa (visa), on the basis that Mr Singh did not satisfy a criterion for the grant of that visa in cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because he did not satisfy the requirements in Item 3001 of Schedule 3 to the Regulations. As a consequence, his application for a Subclass 801 visa was also refused. On 14 June 2017, Mr Singh applied to the Tribunal for review of the delegate’s decision. On 18 March 2019, the Tribunal affirmed the delegate’s decision not to grant the visa, on the basis that Item 3001 of Schedule 3 had not been satisfied. On 12 April 2019, Mr Singh filed an application for judicial review of the Tribunal’s decision in the FCCA. On 18 February 2020, the primary judge dismissed that application (Singh v Minister for Home Affairs & Anor [2020] FCCA 608). These proceedings were commenced by way of a Notice of Appeal filed on 5 March 2020. The matter was held in abeyance while in-person hearings were suspended during the COVID-19 pandemic.STATUTORY FRAMEWORK Section 65 of the Migration Act 1958 (Cth) (Act) requires the Minister to grant a visa if satisfied that the criteria are met, and must refuse to grant a visa if not so satisfied. The criteria for grant of a partner visa are found in Schedules 1 to 5 of the Regulations. As Mr Singh filed his partner visa application while in Australia, he was required to satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations:(2) An applicant meets the requirements of this subclause if: …(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. Item 3001 of Schedule 3 to the Regulations (Item 3001) relevantly required that:(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 ……(iii)the last day when the applicant held a substantive … visa ………

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The policy reasons for these statutory settings appears to be that, ordinarily, a person without a visa for Australia is not entitled to be in Australia. A person in such circumstances would not be able to lodge an application for a partner visa from within Australia and, in so doing, be able to remain in Australia while that application was being processed. Rather, a person in such circumstances would be required to apply for a partner visa from overseas and await the grant of that visa as the basis for making entry to Australia. The combined effect of cl 820.211(2)(d)(ii) and Item 3001 is to place an applicant who has remained in Australia without a substantive visa for more than 28 days in the same position as other applicants who do not otherwise hold a visa for Australia by requiring that they apply from outside Australia, and not benefit from remaining in Australia, unless the applicant can show compelling reasons that warrant allowing an onshore application to proceed. THE TRIBUNAL’S DECISION The Tribunal’s decision was usefully summarised by the primary judge at [7]-[17]. The Tribunal found that Mr Singh had ceased to hold a substantive visa more than 28 days before the partner visa application was made (at [10]-[11]). The Tribunal then considered whether there were compelling reasons not to apply the criteria in Item 3001. The Tribunal was not satisfied that, individually or cumulatively, the following circumstances raised by Mr Singh and Ms Sharma amounted to compelling reasons not to apply Item 3001:(a)the genuineness and longevity of their relationship. The Tribunal considered that this was a foundational requirement for a partner visa, and not compelling (at [15]);(b)Ms Sharma’s health conditions, including stress induced by, and exacerbating, conditions affecting her ability to conceive a child (at [16]-[17]);(c)the difficulties Mr Singh would face in India (at [20]-[22]);(d)Mr Singh’s mental health (at [24]-[25]);(e)a claim that Mr Singh’s adverse immigration history in Australia was due to bad advice from migration agents (at [20]-[23]);(f)the difficulties that any period of separation would present to Mr Singh and Ms Sharma if Mr Singh was required to apply from overseas (at [19]). The Tribunal found that:While [the Tribunal] accepts that [Mr Singh’s] departure may present some hardship and challenges, it is of the view that a level of hardship may be experienced if partners are separated from one another for any extended period time [sic]. This is a particularly common experience for a large number of applicants applying from offshore to migrate to Australian on the basis of their relationship with an Australian partner … Although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, even after considering the parties’ claimed interdependency, the parties have not satisfied the Tribunal that their separation, for a time, is a compelling reason not to apply the Schedule 3 criteria in this case. (g)the difficulties Mr Singh and Ms Sharma were having conceiving a child (at [16]-[17]). In this regard, the Tribunal found (at [18]) that:The Tribunal accepts that [Mr Singh and Ms Sharma] sought [In Vitro Fertilisation (IVF)] assistance and [Ms Sharma’s] evidence that they cannot afford to continue with IVF treatments. The Tribunal is of the view that it is not unusual for couples, especially older couples, undertaking IVF treatment not being successful in conceiving a child. While the Tribunal is sympathetic to the parties’ experience in not conceiving, it does not accept that the parties’ circumstances in this regard are unusual and is not compelled by these circumstances.

Ratio Decidendi

Legal Principle Established

The Minister contended that the third particular was not raised at all before the Tribunal. Citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47], the Minister further contended that the third particular would not have arisen as a matter the Tribunal needed to consider, once it had rejected the factual premise on which it was based, by finding that the effect on chances of conception resulting from a period of separation did not amount to a compelling reason not to apply Item 3001. CONSIDERATION As mentioned earlier in these reasons, the notice of appeal set out three grounds.Ground 1 The first ground was that “the Primary Judge erred in not finding that the Tribunal’s assessment and reasoning process of the compelling reason was erroneous”. The ground contained six particulars. I agree with the Minister, who identified a focus on two issues. Particulars (i)-(iii) and (v)-(vi) dealt with the first issue and particular (iv) dealt with the second. Particular (i) asserted that the Tribunal drew a generalised parallel with Mr Singh applying from offshore on the basis of their relationship. Particular (ii) recorded the Tribunal’s acceptance that “hardship” could be considered a compelling factor. Particular (iii) recorded the Tribunal’s acceptance that Mr Singh departing Australia may present the parties with challenges. Particular (v) recorded the Tribunal’s acceptance that Mr Singh departing Australia may provide the parties with challenges, which repeats particular (iii), but references different reasons. Particular (vi) asserted that, whilst the Tribunal accepted that Mr Singh’s departure may present some hardship and challenges, it was of the view that a level of hardship may be experienced if partners are separated from one another and that this is a particularly common experience for a large number of applicants applying from offshore. It seemed to be asserted that the Tribunal made a jurisdictional error in making the generalised parallel. The passages referred to are from [17] and [19] of the Tribunal’s decision. Particular (iii) referred to a passage in [17]. The Tribunal noted that Mr Singh’s departure may present the parties with challenges, but continued to “encourage” Ms Sharma to seek assistance from family and friends and health professionals during any separation and also noted that Mr Singh could continue to support Ms Sharma via various communication tools available. The conclusion, in the same paragraph, was that the Tribunal was not satisfied that the conditions outlined were compelling reasons not to apply the Schedule 3 criteria. Neither was the Tribunal satisfied that Ms Sharma would be unable to care for herself during Mr Singh’s absence. Those are conclusions which were clearly open to the Tribunal. Paragraph 19 referred to a submission that Mr Singh was unable to return to India because he supported Ms Sharma in her study and work and that the parties were wholly interdependent for mental, physical, psychological, financial and emotional support. Reference was also made to a submission that a departure from Australia would mean that Ms Sharma may not have had the support necessary to complete her study and progress to work in the aged care service sectors. Again, the Tribunal accepted Mr Singh departing may provide the parties with “challenges”, but did not accept that Ms Sharma would not have completed her study and noted that Ms Sharma had successfully worked and completed study in Australia prior to the parties’ relationship.