Singh v Minister for Immigration

[2018] FCCA 2261

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2261

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: AMRIT PAL SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1204 of 2017

Judgment of: Judge Vasta

Hearing date: 16 August 2018

Date of Last Submission: 16 August 2018

Delivered at: Brisbane

Delivered on: 20 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Travers

Solicitors for the Applicant: Gupta Lawyers

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 5 December 2017 as amended on 8 May 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1204 of 2017

AMRIT PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, Amrit Pal Singh, is an Indian national who first came to Australia on 6 March 2009.  At that time, he was in possession of a student visa which expired on 9 June 2011. 

2. Two days before the expiration, the Applicant lodged another application for a student Visa.  This application was refused on 20 June 2011. Upon refusal, the Applicant lodged an application for a review of the decision with the then Migration Review Tribunal.  That Tribunal affirmed the decision to refuse the Visa on 29 May 2012.

3. On 3 August 2012, the Applicant was granted a bridging Visa on the condition that he made arrangements to depart Australia by 9 August 2012.  On that date he requested ministerial intervention in relation to his refused student Visa application.  On 30 October 2012, the Minister notified him that he would not consider that request.

4. The Applicant then lodged an application for a protection visa on 27 November 2013.  On that same day the application was found to be invalid.  He lodged another application for a protection visa on 2 December 2013 and this application was also found to be invalid on the same day.

5. On 10 December 2013 the Applicant lodged another application for a protection Visa.  This application was refused on 27 May 2014.  The Applicant then lodged an application for review of this decision with the refugee review Tribunal.  The Tribunal affirmed the decision to refuse the Visa on 11 May 2015.

6. The Applicant lodged an application for a partner Visa on 2 June 2016.  The regulations state that such an application must be made while the Applicant holds a substantive Visa, or had applied within 28 days of the day his last substantive Visa expired.  If neither of those pre-requisites are met, the application must be made outside of Australia unless the Minister finds that there are “compelling reasons” that exist at the time of application not to apply that requirement.

7. On 11 October 2016, the delegate was not satisfied that compelling reasons existed for a waiver of the requirement that the Applicant make his application from outside of Australia. The Applicant sought review from the Administrative Appeals Tribunal.

8. On 2 November 2017, the Tribunal affirmed the decision.  The Applicant filed this application on 5 December 2017.

The Spousal Relationship

1. The sponsor was born in Australia and has a child, Jonathan, from a previous relationship.  Jonathan was born on 27 July 2008.  The Applicant said that he met the sponsor in Tully in October 2013 and they commenced a de-facto relationship soon after.  They married on 22 August 2015.

2. The Applicant says that he has a shared life now with the sponsor and has given documents including joint bank statements, joint utility bills, phone bills, joint tenancy agreements, travel itineraries, photographs, relationship statements, statutory declarations, and reports from social workers in support of that contention.

3. The Tribunal had no particular issue with the aspect of whether this was a genuine relationship but did not make specific findings.

Proceedings before the Tribunal

1. There was no argument before the Tribunal that the Applicant did not meet the prerequisites as his application was filed on 2 June 2016, whereas to meet the prerequisites he needed to file his application by 7 July 2011.  Therefore the only question before the Tribunal was whether there were compelling reasons to waive the requirement for the Applicant to leave Australia.

2. At paragraph 29 of the reasons, the Tribunal correctly identifies that “compelling reasons relate to the hardship that can result if an unlawful noncitizen wishing to remain in Australia on the grounds of his or her spouse or de facto relationship is obliged to leave Australia and apply from overseas.”

3. At paragraph 30 of the reasons, the Tribunal correctly states that “compelling reasons” is not defined but that such reasons should be sufficiently convincing to move the decision-maker to exercise their discretion to waive the requisite criteria and that the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria.

4. The Tribunal looked at a number of matters both singularly and as part of an overall tapestry.  The matters included:-

   a)the lack of the drivers’ licence of the sponsor;

   b)the reason why the Applicant did not hold a substantive Visa;

   c)the length of the relationship and whether there is a child of the relationship;

   d)the impact on the sponsor’s child, Jonathan, if the Applicant departed from Australia;

   e)the impact of separation from the sponsor and Jonathan on the Applicant;

   f)the trauma history, medical and fertility problems of the sponsor;

   g)financial difficulties the sponsor may experience if the Applicant departed from Australia;

   h)difficulties the Applicant may experience if he returns to India; and

   i)the Applicant’s contribution to the Sikh community.

5. At paragraph 68 of the reasons, the Tribunal summarised the overall assessment of the application:

   68. The Tribunal has considered all of the claims made by the applicant in relation to this matter. The Tribunal has had regard the length of the parties’ relationship and the connection and bonds between the applicant and the sponsor and her son, Jonathan. The Tribunal has also considered the impact on the parties and Jonathan if the applicant returns to India for a period of time, from an emotional, psychological, practical and financial perspective. The tribunal has also considered the mental and physical health of the sponsor and her claimed reliance on support from the applicant.  The Tribunal accepts the sponsor has fertility problems, but notes the parties are not undertaking fertility treatment at the present time. The Tribunal accepts the sponsor has achieved improved stability in her life in recent years and is making more pro-social choices for herself and Jonathan.  The Tribunal accepts this is in part due to her relationship with the sponsor.  The Tribunal is not however persuaded the risk the sponsor will resume an unstable lifestyle has been established by the evidence that has been put before the Tribunal. The Tribunal does not accept the sponsor and Jonathan have no access to support from either social networks or welfare services, or that they will experience severe financial hardship if the applicant returns to India for a period of time. The Tribunal is also not convinced the applicant has established there is a current risk to his safety in India.  The Tribunal has considered these and the other reasons put forward in this matter both singularly and cumulatively and is not satisfied they provide a compelling reason to not apply the Schedule 3 criteria.

6. For those reasons, the Tribunal affirmed the decision not to grant the visa.

7. The applicant has given two grounds upon which he says that the Court should review this decision.

Ground One

1. Ground one is set out as follows:

   1. The Tribunal engaged in conduct which amounted to jurisdictional error in assessing whether there were compelling reasons for the non-compliance of the Schedule 3 criteria in that the Tribunal considered the an irrelevant fact.

   Particulars

   a) In considering the Application, the Tribunal worked from the premise that the period that the Applicant would be required to be absent from the Sponsor and her son. Jonathon, would be limited. There was no evidence before the Tribunal that the period would only be a "limited period" and therefore the Tribunal considered an irrelevant consideration.

2. This ground arises from the description given by the Tribunal about the “period of separation” between the Applicant and Jonathan (paragraph 48) and the “period of disruption” that would arise from the Applicant’s departure (paragraph 49) and the “period of time” for which the Applicant would depart Australia.  All of those periods were described as “limited”.

3. The argument advanced by the Applicant is that the Tribunal should know that there are “significant delays in the Australian immigration system and that an offshore application would take at least 18 months to 2 years or more to be considered”.  The argument is that this is not a “limited” period.  But in any event, there was no evidence before the Tribunal as to what period of time it would take for such an application to be considered.  Therefore to have described any period as being “limited” was incorrect.

4. I cannot accept that this is the case.  The word “limited” means that the time would be confined to a period when the Applicant left Australia and when he returned to Australia.  The word “limited” does not mean “of short duration” as is the true contention of the Applicant.  Therefore, I cannot see any error established by this ground as argued.

5. However, during the hearing, I commented that in talking about a period of separation, such may infer that the separation has a beginning and an end.  The separation will only have an end if the application is successful and the Applicant is allowed to return to Australia.  Even though I raised that in argument, I do not find that such constitutes a jurisdictional error for the following reason.

6. It may be argued that consideration of the “hardship” as not constituting “compelling reasons” because there will be an eventual return to Australia, fails to consider that the application may be unsuccessful.

7. But in that case, the application would be unsuccessful whether it was made in Australia or overseas.  To have considered this aspect would be to consider an irrelevant matter.

Ground Two

1. Ground two is set out as follows:

   2. The Tribunal engaged in conduct which amounted to jurisdictional error in that its decision that there were no compelling reasons to not apply the Schedule 3 criteria is illogical.

   Particulars

   a) In circumstances where the Tribunal accepted at face value that the parties were in a genuine and continuing spousal relationship, the nature of the relationship between the Applicant and the Sponsor's child, the past trauma suffered by the Sponsor, the positive effect the Applicant was having on the Sponsor and the support provided to the Sponsor and her child, it was illogical that the Tribunal found that the impact of the Applicant being required to leave Australia for an indefinite period would not have an impact on the Applicant, the Sponsor and/or the Sponsor's child sufficient to waive the requirement to comply with the Schedule 3 requirements.

2. This ground is really a complaint that the decision made by the Tribunal was simply not open to it on the evidence.  There is nothing that has been pointed to that truly stands out as illustrating that the decision was not open.  What the Applicant has done is simply reiterate the evidence that was before the Tribunal.

3. The Tribunal has very carefully considered all of those matters both individually and collectively.  Whilst it may be a decision that other decision-makers may not have made, it was still a decision that was open to the Tribunal.  Because of that fact, there can be no jurisdictional error.

Order

1. I dismiss the application and order that the applicant pay the costs of the Respondent fixed in the sum of $5000.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  20 August 2018