Singh v Minister for Immigration
[2018] FCCA 2312
•21 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2312 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Partner visa – application for review of decision of Administrative Appeals Tribunal affirming decision of delegate not to grant a Partner visa because spousal relationship between applicant and sponsoring partner found not to exist at the relevant time – sponsor overseas for nearly 21 months before Tribunal hearing at which neither she or the applicant appeared – applicant requests Tribunal to make decision without applicant and sponsor appearing at the hearing – consideration of definition of “spouse” under reg.1.15A of the Migration Regulations 1994 (Cth) – typographical error in decision record of Administrative Appeals Tribunal – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 426A Migration Regulations 1994 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | VIKRAMJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 819 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 1 September 2017 |
| Date Judgment Reserved: | 15 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms H. Musgrove |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 12 May 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 819 of 2017
| VIKRAMJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 32 years, having been born on 19 January 1986.
By Amended Application filed in this Court on 12 May 2017 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 March 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 26 May 2016 refusing to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant first arrived in Australia on 4 January 2007 as the holder of a Student (Class TU) (Subclass 572) visa (Student visa) which remained in effect until 23 January 2007. On 27 February 2008 he was granted a further Student visa which remained in effect until 15 March 2010. On 23 December 2009 he applied for a Skilled (Class VC) (Subclass 485) Graduate visa which was granted on 2 August 2011 and remained in effect until 2 February 2013. He then applied for a further Student visa on 1 February 2013 which was granted on 4 April 2013 and remained in effect until 13 June 2014.
The Applicant applied for the temporary Partner visa together with the permanent Partner visa on 6 February 2014 on the basis of being in a spousal relationship with his sponsor, an Australian citizen by name Ms Gabrielle Frances Thorley (the sponsor), whom he had married in Australia on 5 October 2013.
I note that the grant of a permanent Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) is to prescribe that at time of decision the relevant applicant is already the holder of a temporary Partner visa.
Statutory Provisions Relevant to Partner Visa Applications
For the purposes of his Partner visa application the Applicant had to establish to the satisfaction of the Minister that he was and continued to be the spouse of his sponsor both at time of application and at time of decision as required by the combined effect of cl.820.211(2)(a) and cl.820.221(1)(a) of Sch.2 to the Regulations.
At all relevant times, s.5F of the Act defined a “spouse” for the purposes of the Act and the Regulations as follows:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
(emphasis supplied)
Regulation 1.15A of the Regulations made provision for determining whether the conditions in s.5F existed and provided relevantly as follows:
1.15A Spouse
(1) …
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4) …
(emphasis supplied)
Decision of Delegate
As the Applicant was in a married relationship with the sponsor the Delegate, in her Decision Record of 26 May 2016, considered the Applicant’s application for a temporary Partner visa and a permanent Partner visa with respect to the definition of spouse in s.5F of the Act under the following headings, as mandated by reg.1.15A of the Regulations:
a)financial aspects of the relationship;
b)nature of the household;
c)social aspects of the relationship; and
d)the nature of the persons’ commitment to each other.
In the result the Delegate refused to grant to the Applicant a temporary Partner visa and that accordingly meant that the Applicant did not meet the criteria for a permanent Partner visa, which was also refused.
In relation to the financial aspects of the relationship the Delegate was not satisfied that the Applicant and his sponsor had pooled their financial resources in any way, that they had any significant joint assets or liabilities or that they shared any day-to-day financial responsibilities.
In relation to the nature of the household the Delegate considered various documents submitted by the Applicant and his sponsor, including a letter from AustralianSuper dated 2 December 2013 which indicated that the Applicant had nominated his sponsor as a 100% beneficiary of his AustralianSuper account (AustralianSuper letter). The Delegate did not consider that the AustralianSuper letter provided convincing evidence for a mutual commitment to a shared life together and the other documents submitted also did not satisfy her that the Applicant and the sponsor had established a household or shared a living arrangement that was representative of a couple in a genuine and continuing spousal relationship.
The Delegate was not satisfied that there was convincing evidence that the Applicant and the sponsor presented themselves as a married couple to family or the wider community. In particular, the Delegate recorded that the sponsor had departed Australia on 19 June 2015 and had not returned and that on 10 September 2015 the Delegate had contacted the Applicant by phone and been informed by him that the sponsor would return within the following three months, but by the time of the Delegate’s decision the sponsor had not done so. The Delegate also noted that on 11 February 2016 the Department of the Minister had sent a text message to the Applicant asking him to contact the Delegate but that he had not done so, nor had he answered his mobile phone when the Delegate had attempted to contact him to discuss his application for a Partner visa.
Application for Review to the Tribunal and Tribunal Decision
On 8 June 2016 the Applicant lodged with the Tribunal an application for review of the decision of the Delegate to refuse to grant to him a temporary Partner visa.
Under cover of email dated 19 January 2017 the Tribunal sent a letter to the Applicant of the same date which invited him to attend a hearing on 7 March 2017. The letter also stated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter further stated as follows:
The Member may wish to take evidence from Gabrielle Frances Thorley. Please arrange for Gabrielle Frances Thorley to attend the hearing.
The usual Response to Hearing Invitation was also forwarded by this email.
The Applicant did not complete and send the Response to Hearing Invitation back to the Tribunal and so on 3 March 2017 an officer of the Tribunal sent an email to the Applicant at 11:44am which noted that it had not received the Response to Hearing Invitation or any additional information and enquired whether the Applicant or anyone else would be attending the hearing on 7 March 2017 and whether the sponsor was still overseas.
The Applicant responded to the Tribunal by email of 4 March 2017, which stated verbatim as follows:
Hi Jeff
Sorry for late response mate. My wife is still overseas. She wants to spend some more time there in
London.
I won’t be able to attend the hearing either. You will
Have to go further without me on the decision
Tanks a lot for reminding me about the response tho
Your sincerely
Vikramjeet Singh
By s.426A(1A)(a) of the Act the Tribunal was authorised to make a decision on the review application if the Applicant did not appear at the scheduled hearing and this is what the Tribunal did.
In the result, the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a temporary Partner visa. At [4] of its Decision Record the Tribunal recorded that the Applicant had provided the Tribunal with a copy of the Decision Record of the Delegate dated 26 May 2016, that he had advised the Tribunal by his email of 4 March 2017 that he and his sponsor would not be attending the hearing, that the Tribunal had decided that it should go ahead with its decision on the review and that the Tribunal had proceeded to its decision “on the papers”.
At [9] of its Decision Record the Tribunal accepted that the Applicant and his sponsor were married.
At [13] – [14] and [16] – [33] of its Decision Record the Tribunal recorded, considered and analysed the Applicant’s claim under the matters mandated by reg.1.15A of the Regulations. However, at [15] the Tribunal foreshadowed its ultimate finding at [36] of the Decision Record (for which see [24] below) as follows:
[15] The parties must satisfy the Tribunal that they are in a married relationship with a mutual commitment to each other to the exclusion of all others, that their relationship is genuine and continuing and that they lived together or not separately or apart on a permanent basis, both at the time of application and time of this Tribunal’s decision. The Tribunal is not satisfied having considered all the matters and circumstances, that the parties are in a genuine married relationship at the time of this decision, nor were they at the time of the application.
At [19] of its Decision Record the Tribunal dealt with the AustralianSuper letter and noted that no statement of account had been provided for the account referred to in the AustralianSuper letter. I take this comment by the Tribunal as meaning that there was no evidence of the monetary amount comprising the AustralianSuper account, of which the sponsor had been nominated as a 100% beneficiary. Paragraph [19] concludes as follows:
[19] … The letter has not therefore been given only very limited weight to support the claim that the parties shared finances at the time of application.
I note at this point that I consider the word “not” appearing in the last sentence of [19] to be a typographical error. The sentence is to be read without the negative, because if read with the negative it is incoherent in the context of the preceding part of [19].
At [33] of its Decision Record the Tribunal found as follows:
[33] The applicant's movement records indicate that he has not left Australia since he last arrived onshore on 15 January 2014. The Tribunal concludes, on this evidence, that the parties have not seen each other in person since at least 19 June 2015 No evidence has been provided to the Tribunal at the time of this decision that the parties have had contact of any kind with each other since 19 June 2015 and the Tribunal is not satisfied, considering this together with all other matters discussed above, that the parties are committed to the relationship, or that they live together or draw any emotional support from each other.
The Tribunal’s ultimate decision was recorded at [36] of its Decision Record, as follows:
[36] At the time of this Tribunal's decision, accepting that at the time of application the parties were legally married, having considered all matters and circumstances available, the Tribunal makes these findings:
a. The parties do not have a mutual commitment to a shared life to the exclusion of all others; and
b. They are not in a genuine and continuing relationship; and
c. They do not live together or not separately and apart on a permanent basis.
Accordingly, the decision of the Delegate was affirmed by the Tribunal.
Grounds of Attack on the Tribunal Decision in this Court
The Amended Application contained the following Grounds:
1. In finding that the applicant and sponsor are not in a married relationship at time of decision (at [17] Decision Record) the Second Respondent acted erroneously and unreasonably as there was no evident and intelligible justification for that finding.
Particulars
a. The Second Respondent drew the conclusion that because the sponsor had departed Australia, the sponsor and applicant had ceased being in a married relationship.
b. The Second Respondent had committed an error in logical reasoning to conclude that the relationship ceased by virtue of the sponsor and applicant being in different geographical locations.
2. In making a finding that the Australian Super letter dated 2 December 2013 (at [19] Decision Record), the Second Respondent made an erroneous finding that was illogical or irrational.
Particulars
a. The word ' not' in the last sentence at [19] results in an illogical or irrational statement in regard to the letter dated 2 December 2013.
3. In making the finding regarding an Australian Super letter dated 2 December 2013 (at [19] Decision Record), the Second Respondent identified a wrong issue or ignored relevant material.
Particulars
a. The Second Respondent attributed the nomination of the sponsor as sole beneficiary as a financial aspect of the relationship.
b. The Second Respondent had failed to recognise the nomination of the sponsor as sole beneficiary as the mutual commitment between the sponsor and applicant.
Consideration
Ground 1
This Ground fails to establish jurisdictional error.
At [17] of its Decision Record the Tribunal was considering the definition of “spouse” provided by s.5F of the Act which required that the Applicant and the sponsor were in a “married relationship”. There was no doubt that they had been validly married in Australia; however the Tribunal was also bound to consider whether they had a mutual commitment to a shared life as husband and wife, whether the relationship between them [was] genuine and continuing and whether they live[d] together or did not live separately and apart on a permanent basis.
It was these matters to which the Tribunal turned its attention in [17] and in coming to a view on them it took into account that neither the Applicant nor the sponsor had appeared before the Tribunal to support their claims and that the evidence showed that the sponsor had departed Australia nearly 21 months previously in June 2015 and had not returned. In such circumstances it was legally open to the Tribunal to conclude that a mutual commitment to a shared life between them as husband and wife did not exist, that the relationship between them was not genuine and continuing and that they did not live together, such that the Tribunal could in a legally reasonable sense conclude that they were not in a married relationship for the purposes of s.5F(2) of the Act at the time of decision.
Further, I do not accept that Particulars (a) and (b) to Ground 1 fairly state the Tribunal’s reasoning process at [17] of its Decision Record. The Tribunal did not there find simpliciter that because the sponsor “had departed Australia” and the Applicant and sponsor were in “different geographical locations” they had ceased being in a “married relationship”. Rather, the Tribunal also had regard to the fact that no additional information in support of the Applicant and the sponsor being in a married relationship had been given to the Tribunal despite an invitation to do so, they had not appeared at the Tribunal hearing, a period of nearly 21 months had elapsed since the sponsor had gone overseas and there was no explanation of how that absence impacted on their assertion that they were in a married relationship.
At [17] the Tribunal was focussing on the failure of the Applicant and sponsor to attend the hearing and the length of the sponsor’s absence from Australia. However, [17] is not to be read in isolation from the rest of the Decision Record. The Tribunal’s reasons for decision are not to be given an over-zealous reading but a “beneficial construction” and in particular to be read as a whole. The structure and sequence of an administrative decision-maker’s reasons for decision would rarely, if ever, establish jurisdictional error. As Gleeson CJ observed in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 [14]:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
Accordingly, [17] of the Decision Record has to be read in the context of the other findings of the Tribunal, and in particular its statement at both [15] and [36] of the Decision Record that it had considered “all the matters and circumstances” in coming to its ultimate conclusions: see Mowatt v Minister for Home Affairs (No 2) [2018] FCA 1157 at [40] per Steward J. The Tribunal at [17] did not reason illogically or without intelligible justification.
Ground 1 fails to establish jurisdictional error.
Ground 2
This Ground also fails to establish jurisdictional error.
Typographical errors in Tribunal decision records and even in reasons for judgment of Judges in Courts throughout Australia are not uncommon. I have already expressed the view at [22] above that the appearance of the word “not” in the last sentence of [19] of the Decision Record is by way of typographical error and such mistakes in proof reading of draft reasons do not establish jurisdictional error.
The present typographical error is the reverse, but of the same kind, as that considered by Marshall J in CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682, where at [27] – [29] he said:
[27] Mr Gray placed reliance on some other grounds of review. None of them have merit.
[28] The first of these grounds fastens upon a typographical error in the RRT’s decision in which it omitted the word “not”. At 13 of the RRT’s decision it was stated:
“…the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka.”
[29] I see no reason to defy commonsense by not observing that a typographical error was made. I would read in the word “not” prior to the word “satisfied” in the sentence quoted above.
Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground appears to attack the Tribunal for having considered the AustralianSuper letter as relevant to the financial aspects of the relationship between the Applicant and the sponsor rather than as relevant to their mutual commitment to a shared life together, but relies on an overly critical reading of the Decision Record. It was mandatory for the Tribunal under reg.1.15A(2) of the Regulations to “consider all of the circumstances of relationship”, including the four matters stipulated in reg.1.15A(3)(a) to (d). It was convenient and entirely conventional for the Tribunal in its Decision Record to consider the evidence under headings corresponding to sub-paragraphs (a) to (d) of reg.1.15A(3). There was nothing legally unreasonable or illogical in the Tribunal considering the AustralianSuper letter under the matter stipulated by reg.1.15A(3)(a) being “Financial Aspects of the Relationship”. It concluded that because it had no evidence of the quantum of the AustralianSuper account to which the AustralianSuper letter referred that the AustralianSuper letter was only of very limited weight: see [22] above.
It is true that the Tribunal in its Decision Record at [27] – [33], which appeared under the heading referable to reg.1.15A(3)(d) being “Nature of Commitment to Each Other”, did not again refer to the AustralianSuper letter. However, that does not mean that the AustralianSuper letter was disregarded by the Tribunal or not taken into account in considering the nature of the commitment between the Applicant and the sponsor, having regard in particular to the Tribunal’s statement at [15] and [36] of its Decision Record that it had considered “all the matters and circumstances”. Rather, as the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at 604 [47]:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point…
It is likely that the Tribunal, having already determined to give very limited weight to the AustralianSuper letter in support of claims concerning the financial aspects of the relationship, simply did not consider the AustralianSuper letter to be further material to its decision, either in relation to the matter of the nature of the commitment or more generally as to whether the Applicant and the sponsor were in a married relationship. As Perram J said in SZTMD v Minister for Immigration (2015) 150 ALD 34 at 37 [15] – [16] with reference to the analogue section to s.368 of the Act applicable in this case, with respect to country information:
[15] It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (‘Yusuf’). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
[16] If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. …………
In like manner, the Full Court of the Federal Court of Australia in Minister for Immigration v Eden (2016) 240 FCR 158 per Allsop CJ, Griffiths and Wigney JJ said at [74] with reference to the Minister’s reasons for cancelling the visa in that case:
[74] …Whilst the Reasons do not expressly refer to this aspect of Mr Eden’s behaviour, it does not follow that the Minister necessarily ignored it. It is equally consistent with the Minister not regarding it as sufficiently material to include in the brief recitation of Mr Eden’s offending conduct…
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 [46] per French, Sackville and Hely JJ. An error of fact based on a misunderstanding of evidence, or even overlooking an item of evidence in considering an applicant’s claims, is not jurisdictional error so long as the error does not mean that the Tribunal has not considered the applicant’s claims: Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28] per North and Lander JJ.
Intertwined with the above is the fact that the AustralianSuper letter was not material which could be regarded as so “fundamental”, “important” or “overwhelming” such that a failure to have regard to it by the Tribunal would constitute jurisdictional error: see Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (MZYZA) at [60] per Tracey J. It was not of pivotal or fundamental importance to the Applicant’s claims.
Accordingly, in my view there has been no constructive failure by the Tribunal to exercise jurisdiction due to any failure to refer to the AustralianSuper letter in the context of its consideration of the nature of the commitment between the Applicant and the sponsor. I am of the view that the Tribunal did consider the AustralianSuper letter in that context but did not consider it to be material. If I was wrong in that, and the Tribunal did not consider the AustralianSuper letter in the context of its consideration of the nature of the commitment between the Applicant and the sponsor, then jurisdictional error has still not thereby been established. Otherwise it is sufficient for me to refer to the decision of Tracey J in MZYZA where relevant authorities concerning a Tribunal’s failure to mention evidential material are considered by his Honour.
Ground 3 fails to establish jurisdictional error.
Conclusion
In my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 21 August 2018
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