Singh v Minister for Home Affairs
[2019] FCCA 3068
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3068 |
| Catchwords: MIGRATION – Review of decision of Administrative Appeals Tribunal – jurisdictional error – application for partner visa – no jurisdictional error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 65, 360 |
| Cases cited: NABE v Minister for Immigration & Multicultural Affairs & Indigenous affairs [2004] 144 FCR 1 |
| Applicant: | HARINDER PAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 295 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 30 September 2019 |
| Date of Last Submission: | 30 September 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondents: | Mr Chan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application filed 20 July 2017 be dismissed.
The applicant pay the respondent’s costs filed in the sum of three thousand five hundred dollars ($3,500).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 295 of 2017
| HARINDER PAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal[1] made on 28 June 2017. The applicant in the case is Harinder Pal Singh.
[1] Hereinafter referred to as “the AAT” or “the Tribunal”
Mr Singh is a citizen of India. He first came to Australia, some years ago, to further his education pursuant to a study visa. It is his case that, in early 2014, he met Vanessa Duncan in Sydney and, in early March of 2014, began to live with her. Ms Duncan is an Australian citizen by birth.
Against this background, on 28 May 2015, Ms Duncan applied to the Department of Immigration and Border Protection[2] to sponsor Mr Singh to migrate to Australia. Mr Singh filed his related visa application the next day.
[2] As the Department of Home Affairs was previously known
In support of his application, Mr Singh provided statements from a joint bank account in his and Ms Duncan’s name; photographs of the two together; correspondence indicating they shared the same address at Ms Duncan’s residence; and statutory declarations from their mutual friends. In addition, both he and Ms Duncan provided statements confirming their mutual commitment and love for one another.
On 26 July 2016, a delegate of the Minister declined to grant the visa sought by Mr Singh. As a consequence, Mr Singh sought a review before the AAT, which confirmed the earlier decision of the delegate not to grant him a partner (temporary) (class UK) visa pursuant to the provisions of the Migration Act 1958.[3] It is this decision, which is the subject of these proceedings.
[3] Here and after referred to as “the Act”
Pursuant to section 65 of the Act, the Minister is required to grant a visa, if satisfied that the relevant applicant has satisfied all applicable criteria attaching to the grant of such a visa.
In this particular case, the relevant criteria centre on the nature of the applicant’s relationship with Ms Duncan. In particular, whether that relationship satisfied the considerations specified in section 5CB(2) of the Act, which in turn is subject to further elaboration which is set out in Part 820 of schedule 2 to the Migration Regulations 1994.
In general terms, a relevant decision maker, prior to granting a temporary partner visa issuable under the Act, must be satisfied in respect of considerations relating to the following criteria:
·The financial aspect between the applicant concerned and his sponsor;
·The nature of the household shared by the applicant and his sponsor;
·The social aspects of the relationship between the two; and
·The nature of the commitment between the two individuals concerned.
Significantly, in the context of the present matter, the relevant decision maker must be satisfied regarding these various issues at both the time the visa application was made and at the time of decision. Further regulations deal with situations in which a visa applicant asserts that he or she has been the subject of family violence during the relevant relationship, which has led to the cessation of the relevant relationship.
On 5 April 2017, the AAT appointed the 21st of June 2017 as the hearing date for Mr Singh’s review application, arising from the decision not to grant him a temporary partner visa. In the relevant letter he was advised that he could “give evidence and present arguments” relating to the issues arising in his case. This invitation letter is mandated by the provisions of section 360 of the Act.
Mr Singh took up that invitation and appeared before the Tribunal. He was not represented. I have not been provided with a transcript of those proceedings.
It is implicit from the decision of the Tribunal that, at this hearing, Mr Singh indicated to it that he was no longer in a relationship with Ms Duncan. Mr Singh concedes that this is the case and, indeed, as his grounds of review indicate, the circumstances surrounding the end of this relationship found the basis of his judicial review application.
The Tribunal summarised the applicant’s evidence to it as follows:
“The applicant at the Tribunal hearing informed the Tribunal he was no longer in a relationship with his sponsor. The applicant told the Tribunal that he entered into a committed relationship with the sponsor in March 2015. He said that he moved from his brother’s residence in Surry Downs, South Australia to live with the sponsor and her family in Claymore, New South Wales. The applicant said that he stayed at the sponsor’s residence for a period of two months before returning to live in South Australia. He told the Tribunal that he had made a bad decision, his life went to hell living with the sponsor at Claymore and that his health deteriorated during that time and the relationship ended.
The applicant told the Tribunal that he had no family in India and wanted to stay in Australia with his mother and brothers. He stated that he wanted to study and forge a career in the fitness industry and help people with obesity. He said that he was too old to be gainfully employed in India. The applicant told the Tribunal that he had a blood disorder and had to visit the Haematology Clinic at the Royal Adelaide Hospital every six months for treatment. He also stated that he had his medical condition before he entered into a de facto relationship with the sponsor. He also said that at present he was in reasonably good health. He requested that the Tribunal to grant him a visa on the abovementioned grounds. The Tribunal considered the issues raised by the applicant at the hearing in respect to the nature of his relationship with the sponsor.”[4]
[4] See casebook 246–247 [9]–[10]
The AAT decision
The AAT considered the various criteria germane to the relationship between the applicant and Ms Duncan. Given that Mr Singh conceded that there was no longer any relationship between the two, it is hardly surprising that the Tribunal concluded there was no de facto relationship between them and therefore Mr Singh was not entitled to be granted a temporary partner visa under the Act.
Notwithstanding the lack of relevant de facto relationship between Mr Singh and Ms Duncan, at the time of the hearing, the Tribunal nonetheless assessed the evidence provided to it regarding the nature of that relationship prior to its breakdown.
In this context, it noted what it regarded as significant credibility issues regarding both Mr Singh and Ms Duncan’s evidence regarding the circumstances surrounding their first meeting and whether Mr Singh’s family did in fact support or oppose the relationship. Overall, the Tribunal did not accept that Mr Singh and Ms Duncan had had a mutual commitment to a shared life.
It reached this conclusion because it found that the two had spent little time together over the course of their relationship and there was a dearth of evidence that the two had been committed to providing companionship and emotional support to one another.[5]
[5] Ibid 248 [21]
It was open to the Tribunal to consider the nature of the relationship between the parties, at the time of the visa application, given the import of clause 820.221(3) of the Regulations.
This provides that a temporary partner visa may nonetheless be granted if an applicant is able to establish that there was previously a de facto relationship, which satisfied the regulatory criteria, but that relationship ended as a consequence of exposure to family violence.
In this context, the Tribunal indicated as follows:
“Given these findings the Tribunal is not satisfied at the time the visa application was made and at the time of this decision the parties were in a de facto relationship. There is no information before the Tribunal that the applicant would satisfy any of the alternate criteria for the grant of the visa. There is no evidence, and the applicant does not claim, that he has suffered family violence, the sponsor is alive and there are no children and no responsibilities in relation to children.”[6]
[6] Ibid 249 [24]
The grounds of review
Mr Singh has acted on his own behalf in these proceedings and prepared his own grounds of review. They are supported by an affidavit in the same terms. It is necessary to provide this material verbatim:
“1. I, Harinder Pal Singh, request you to please consider my partner visa application for review as Department of Immigration and AAT had not considered any of the evidences provided that I had gone through significant amount of family violence due to my illness and my fatness which resulted in breakdown of our relationship.
2. I applied for partner visa subclass 820 and Partner (Migrant), Subclass 801, on 29 May 2015.
3. I got in relationship with my sponsor, an Australia citizen, Vanessa Gladys DUNCAN, in March 2015. I was living at brother’s residence in Surrey Downs, South Australia but the after having relationship with my de facto partner, I moved with her and her family in Claymore, New South Wales.
4. Since then I suffered immense physical and mental torture from my partner on almost daily basis. I had a blood disorder and had to visit the Haematology Clinic at the Royal Adelaide Hospital every six months for treatment. I had his medical condition before I entered into a de facto relationship with her. But my condition actually worsened and I literally touch the deathbed due to the stress and trauma I faced in that relationship. It was the worst decision of my life. I was dying slowly. At one time it was too much for me to take in so I left and came back to Adelaide.
5. I am now taking regular treatment and has gained significant improvement in my health.
6. After the exhausting try in front of AAT, I am hereby humbly, requesting the court to please consider my case and look the facts and truths, re-assess my case under family violence and save my life. The court is the only hope left for me to prove my innocence and my dignity where the lower authorities have ignored the facts significant amount of family violence occurred in our relationship. I was torched and bullied due to my illness and treatment.
7. I request the court to please provide justice and save my life.”[7]
[7] Application [1]–[7]
The applicable legal framework under the Act
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
Conclusions
The Applicant contends that the AAT did not consider relevant evidence relating to the significant amount of family violence, which led to the breakdown of his relationship with Ms Duncan. This assertion is at odds with the Tribunal’s finding that Mr Singh did not claim that he had suffered family violence during the relevant relationship.
In this context, Mr Singh is not able to provide any documentary evidence to support his current contention that he did, in fact, raise issues of family violence, with the Tribunal, which it disregarded entirely.
In particular, I have not been provided with a transcript of the proceedings, which supports such a contention. In addition, notwithstanding the invitation proffered to him, pursuant to section 360 of the Act, Mr Singh did not avail himself of the opportunity to provide additional documentary evidence, such as a family violence order or medical report, supporting the contention that he has been subject to family violence.
In these circumstances, I am not persuaded that the Applicant can demonstrate that he has been subject to any procedural unfairness or was not able to present his case.
The Tribunal was required to consider only the Application made by the Applicant himself and the arguments in support thereof clearly articulated by him.[8] As such it is not the responsibility of the Tribunal to make any case for the Applicant concerned or to search out arguments for him.
[8] See NABE v Minister for Immigration & Multicultural Affairs & Indigenous affairs [2004] 144 FCR 1
In my view, there is no evidence to indicate that the Applicant did advance any submissions regarding his exposure to family violence or that this was a topic which emerged from his submissions to the Tribunal.
In all these circumstances, I am satisfied that the Tribunal did pose for itself the appropriate question necessary to acquit its jurisdiction, namely whether there was a de facto relationship between the parties as defined by section 5CB of the Act, both at the time of the Application and hearing. On the basis of the evidence available to it, it concluded that there was no such relationship.
It was a necessary precursor before considerations of family violence could be considered that the Tribunal was persuaded that there was such a de facto relationship, which was terminated by family violence.
In this case, the Tribunal concluded that there was no such relationship and, in any event, the Applicant himself had not raised issues of family violence. In my view, these were factual findings reasonably open to the Tribunal and it is not open to this court to substitute its own finding in regards to them.
In this context, it is not open to the court to consider Mr Singh’s current claims regarding his exposure to family violence. In addition, as previously indicated, I am satisfied that Mr Singh was given the opportunity to present his case to the Tribunal, as he wished, and, as such, it cannot be said that he has been denied procedural fairness.
In these circumstances, the application for review filed on 20 July 2017 must be dismissed. The first respondent seeks costs. Given that this was not an unduly complicated matter, I will fix costs in an amount of $3,500.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 1 November 2019
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