SINGH v Minister for Home Affairs and Anor
[2018] FCCA 3545
•5 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3545 |
| Catchwords: MIGRATION – Unlawful stay of 4 years and 10 months in Australia followed by application for spousal visa – application made out of time – whether compelling reasons to waive Schedule 3 criteria – what constitutes compelling reasons – genuine relationship not found – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), – sch.2, cl.820.211, sch.3, cl.3001 |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 141 FCR 285 Minister for Immigration and Border Protection v Sandhu [2016] FCA 130 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Waensila v MIRB [2016] FCAFC 32 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 266 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 29 November 2018 |
| Date of Last Submission: | 29 November 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 5 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rebetzke |
| Solicitors for the Applicant: | Go to Court Lawyers |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
IT IS ORDERED THAT:
The Application for review filed on 19 March 2018 be dismissed.
That the Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 266 of 2018
| GURPREET SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 23 May 2009 as a spousal dependent on his then wife’s Student (Class TU)(Subclass 572) Visa. On 29 October 2010, the applicant’s visa was cancelled as he was no longer in a relationship with his then wife.
Between 30 October 2010 and 3 September 2015 the applicant remained unlawfully in Australia.
On 4 September 2015 the applicant applied for a partner visa on the basis of his marriage to his sponsor. He married his sponsor on 8 February 2015.
On 27 October 2016, a delegate to the Minister refused to grant to the applicant a partner visa on the basis that the applicant did not meet the criteria in clause 820.211 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate’s refusal is seen at CB 176 – 178 inclusive.
Clause 820.211(2) of the Regulations provides as follows:
1. …
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(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.
It will be noted that by clause 820.211(2)(b)(ii), the criteria in clause 3001 of schedule 3 are incorporated thereby. The delegate found that the applicant did not meet criterion 3001 because his substantive visa ceased to be in force more than 28 days prior to the making of his partner visa application. The delegate also found that there were no compelling reasons for not applying the schedule 3 criteria.
On 1 November 2016 the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal at the hearing on 16 February 2018. At that time, the Tribunal received evidence from the sponsor, the applicant’s elder stepdaughter, and a friend. The applicant was represented at the hearing, and through his representative, he submitted a large volume of documentary evidence, including statements from the applicant and his sponsor, and from persons attesting to the validity of the applicant’s relationship with the sponsor. Documentation also included medical evidence, evidence of utilities bills, bank statements, and a rental agreement said to be supportive of the applicant’s case (CB 214 – 236) and (252 – 401).
On 28 February 2018, the Tribunal affirmed the delegate’s decision (see reasons of Tribunal at CB 408 – 414 inclusive).
The applicant filed an application for review of the decision of the AAT on 19 March 2018. At the hearing before the court today, the applicant sought leave to read and file an amended application. Leave was granted to the applicant to read and file the amended application, which was marked Exhibit 3, on the undertaking of the applicant to file such document in the Registry. The amended application was so filed on the afternoon of 29 November 2018. The amended application had one ground for review as follows:
1. The Second Respondent (“the Tribunal”) failed to form the state of satisfaction as required by law as to a jurisdictional fact: whether there are compelling reasons for not applying Schedule 3 criteria 3001, 3003 and 3004.
Counsel for the Respondent opposed the granting of leave, but did not require reasons upon the application being granted.
The applicant submitted that the Tribunal was required to decide, as a jurisdictional fact, whether the circumstances were so compelling as to lead it to exercise the discretion to waive the Schedule 3 criteria.[1] The applicant submitted that the Tribunal failed to consider all of the evidence relevant to the nature of the applicant’s relationship up to the date of its decision. The applicant pointed to a letter from the applicant’s wife’s general practitioner dated 31 January 2018 which recorded that the applicant and his wife had told the doctor that they had been trying to fall pregnant since late 2015. It was submitted that that was significant evidence pointing to the genuineness of the relationship, the fact that their relationship was continuing, and the fact that the applicant and his wife saw the relationship as a long-term one. The applicant submitted that because such evidence was not mentioned at [26] of the Tribunal’s reasons, the Tribunal must not have considered all of the evidence as it was obliged to do. The applicant submitted that it cannot be inferred that the Tribunal had considered such evidence. Such submissions were made in the context of a “dob-in” having been made by a source familiar with the parties and their circumstances, which information was considered by the Tribunal to be credible (see [25] of reasons).
[1] Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 141 FCR 285 at [16].
The first respondent addressed the submissions that the Tribunal had not reached the requisite state of satisfaction because it had overlooked factors suggestive of a genuine relationship as at the date of the AAT decision, as opposed to the date of the application.
Firstly, the Tribunal found that the applicant had not met criterion 3001. It then identified the relevant question as to whether there were “compelling reasons” not to apply the criteria in schedule 3 of the Regulations. The Tribunal noted, at CB 410 in [21] of its reasons, that compelling reasons can arise at any time, including after the visa application was made, and it cited in support of that proposition the case of Waensila v MIRB [2016] FCAFC 32.
When considering the applicant’s claims, the Tribunal firstly rejected the submission that the parties were in a genuine relationship, and that the sponsor would suffer psychological and financial hardship should the applicant be required to leave the country to make another spousal visa application off-shore. Relevantly, the Tribunal found as follows:
a)The Tribunal was not satisfied that the parties were in a genuine relationship. The Tribunal found, as advised from the “dob-in”, that the applicant had entered into the relationship with the sponsor for the purpose of obtaining a permanent visa, and that he had chosen the sponsor because of her vulnerability. At [25] of the reasons, the Tribunal accepted the “dob-in” information as credible, supported as it was by findings by the Tribunal that the applicant’s explanation as to the nature of the information, and of his motives, was unconvincing; the short duration of the parties’ relationship (during which time the applicant was in part living separately from the sponsor); and otherwise that the Tribunal was not satisfied that the parties were in a genuine relationship at the time of the application.
b)At [26] of the reasons, the Tribunal acknowledged that the motive for obtaining a visa does not preclude the possibility of a genuine relationship. However, after a consideration of all of the evidence, including some evidence of pooling of financial resources, utilities and other bills in joint names, and photographs of the wedding and of the applicant and his wife at social functions, the Tribunal nevertheless made a factual determination that the parties were not in a genuine relationship.
c)At [27] of the reasons, the Tribunal accepted that there was evidence of a spousal relationship “and that there is more evidence at the time of decision, but in this case it is not satisfied that it shed light on the parties’ relationship sufficient to outweigh concerns at the time of the application. The Tribunal therefore does not find that the parties are in a genuine relationship and that this is a compelling reason to waive the criteria.” In making that finding, and in particular because of its use of the word “are”, it cannot be accepted that the Tribunal did not have all relevant issues in mind as at the date of the making of the decision, as opposed to its consideration of circumstances which might have pertained as at the date of the making of the application for the visa by the applicant.
d)The Tribunal at [28] – [34] inclusive of its reasons dealt with the issue of the sponsor’s health, but did not find any compelling reasons for waiving the Schedule 3 criteria. The Tribunal at [34] did not accept that the applicant was the sponsor’s sole support, and found that the sponsor’s parents, sister, and daughters were other sources of such support. At [35] – [36] inclusive, the Tribunal found that the sponsor was in secure, full-time employment, was receiving child maintenance for her daughters, and had coped financially before entering into a relationship with the sponsor. The Tribunal did not accept the submission that the sponsor’s daughters were financially dependent upon the applicant.
Secondly, the Tribunal did not accept that the sponsor’s inability to accompany the applicant to India was a compelling reason, citing the fact that the applicant and her daughters could maintain contact with the applicant through phone calls, via the Internet and during school holidays.
Thirdly, the Tribunal at [38] – [39] accepted that the applicant provided assistance to the sponsor’s daughters for matters such as transport, but did not accept that the applicant was a father figure to such girls.
When addressing the question of what constituted, in circumstances such as the present, a compelling reason, it has been held that a compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa.[2]
[2] See Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204 at [28] and Minister for Immigration and Border Protection v Sandhu [2016] FCA 130 at [55].
Further, in Choi v Minister for Immigration and Border Protection [2018] FCA 291 at [34] Allsop CJ said:
From a practical point of view, since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant schedule 3 Criteria.
Having considered all the evidence before it, including the credible “dob-in” information, the Tribunal found that the parties were not in a genuine relationship at the time of handing down its decision.
Further, it cannot be said that no other rational or logical decision maker could not have made the same decision in respect of the way in which the cancellation notice was to be given. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The applicant has not demonstrated that the Tribunal fell into jurisdictional error when arriving at its decision. The application for review is without merit and is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 5 December 2018
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