Singh v Minister for Immigration
[2018] FCCA 1454
•21 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1454 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visa – applicant found not to be the genuine spouse of his sponsor – certificates issued in relation to information in a home visit report and two “dob in” letters – certain information disclosed under s.359A of the Migration Act – whether the Tribunal erred in refusing to allow more time to respond to an invitation to comment considered – no jurisdictional error. |
| Legislation: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 2014 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration v Singh (2016) 244 FCR 305; [2016] FCAFC 183 Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 MZAFZ v Minister for Immigration (2016) 243 FCR 1; [2016] FCA 1081 Tran v Minister for Immigration [2004] FCAFC 297 |
| Applicant: | SANJAY SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2191 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Solicitors for the Respondents: | Mr L Dennis of Minter Ellison |
ORDERS
The application filed on 12 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2191 of 2017
| SANJAY SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant a partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Singh is a citizen of Fiji. On 4 August 2008, he made a combined application for a partner (Provisional) (Class UF) (Subclass 309) visa (temporary partner visa) and a permanent partner visa.[1] On 9 May 2009, Mr Singh was granted a temporary partner visa.[2]
[1] court book (CB) 1–22
[2] CB 111–114
On 20 January 2012, the delegate refused to grant Mr Singh a permanent partner visa on the basis that he did not satisfy clause 100.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]
[3] CB 248–266
That decision was affirmed by the Migration Review Tribunal (MRT) on 6 March 2014.[4]
[4] CB 322–332
On 18 March 2015, a judge of this Court made orders remitting the matter for redetermination according to law.[5]
[5] Singh v Minister for Immigration [2015] FCCA 533 (CB 334)
By letters dated 8 August 2016[6] and 19 January 2017,[7] Mr Singh was invited to a hearing before the Tribunal. However, on 3 November 2016,[8] 7 January 2017[9] and 12 January 2017,[10] Mr Singh advised the Tribunal that he did not wish to attend a hearing. On 20 June 2017, the Tribunal affirmed the decision under review.[11]
[6] CB 354–355
[7] CB 391–392
[8] CB 367
[9] CB 384
[10] CB 388
[11] CB 421–426
Tribunal decision
The Tribunal identified that the relevant issue was whether Mr Singh satisfied subclause 100.221(2) of Schedule 2 to the Regulations.[12] That clause relevantly required that, at the time of the decision, Mr Singh was the “spouse” of the sponsoring partner.
[12] CB 424: [20]
The term “spouse” was defined in s.5F of the Migration Act 1958 (Cth) (Migration Act). Relevantly, s.5F(2) provided:
(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.
Subsection 5F(3) of the Migration Act provided that the Regulations may make provision in relation to the determination of whether one or more of the conditions above exist. Regulation 1.15A provided that the Minister must consider all of the circumstances of the relationship, including the factors set out in subregulation 1.15A(3). Those factors include: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.
The Tribunal recounted that the delegate refused Mr Singh’s permanent partner visa on the basis of the Minister’s Department's home visit in 2011 when the sponsor's daughter stated she did not know Mr Singh and that the sponsor was single, and other inconsistencies arising in Mr Singh’s evidence at interview.[13] The Tribunal also recounted aspects of the process before the MRT and that the matter was remitted by the Court because Mr Singh’s request for access to documents was not met. The Tribunal also considered:
a)financial aspects of the relationship: the Tribunal found there was no evidence of joint assets, liabilities, legal obligations, pooling of financial resources, or sharing of household expenses;[14]
b)nature of the household: the Tribunal acknowledged their claim that they lived together but found there was no further evidence about their current living arrangements or that they share responsibility for the sponsor's children or housework;[15]
c)social aspects of the relationship: the Tribunal found there was no evidence they represent themselves as a couple or that they are seen as a couple;[16] and
d)nature of the persons’ commitment to each other: the Tribunal noted Mr Singh’s previous submissions about the relationship but placed weight on the fact that neither party gave evidence about the present circumstances of the relationship.[17]
[13] CB 422: [5]
[14] CB 424: [23]
[15] CB 425: [24]
[16] CB 425: [25]
[17] CB 425: [26]
The Tribunal noted that “very little material” had been provided to the first and second Tribunal. Further, the Tribunal placed weight on the Minister’s Department's home visit in 2011 when the sponsor's daughter stated she did not know Mr Singh and that the sponsor was single.[18] The Tribunal also placed weight on an allegation that was received by the Minister’s Department to the effect that they were not living together and Mr Singh has another girlfriend.[19]
[18] CB 425: [27]
[19] CB 425: [27]
For these reasons, the Tribunal found they failed to meet the definition of “spouse” in s.5F of the Migration Act.[20] Consequently, the Tribunal found that Mr Singh did not satisfy clause 100.221(2) of Schedule 2 to the Regulations.[21]
[20] CB 425: [28]
[21] CB 425: [28]
The current proceedings
These proceedings began with a show cause application filed on 12 July 2017. The applicant continues to rely upon that application. There are four grounds in it:
1. The Tribunal had strong evidence about spousal relationship yet failed to take into account any false allegation and the Tribunal failed to show me copies of the allegation.
2.My authorised recipient requested an extension of time yet the Tribunal denied to give it to me and such is a denial of fairness and justice.
3. The Tribunal failed to take into account that my wife and I previously gave evidence to the Tribunal and the Tribunal had no basis to place weight on December 16 allegation and the Tribunal was aware that our relationship is a committed one and that I applied on 4 August 2008 and the relationship was accepted by the Overseas Post and that the first refusal by the Tribunal was quashed by Federal Circuit Court of Australia.
4. The Tribunal’s decision is unreasonable and the denial of the request for a further extension is also unreasonable.
In addition to the court book filed on 1 July 2017, I have before me as evidence the affidavit of Toufic Laba Sarkis made on 7 May 2018, to which is annexed a transcript of the first Tribunal hearing on 19 December 2013[22] and the affidavit of Tristan James Dimmock made on 27 April 2018, dealing with three certificates issued under s.375A of the Migration Act. The documents the subject of the certificates were exhibited in sealed envelopes. I have examined that material.
[22] the transcript was received subject to relevance
The matter came before me for a show cause hearing on 21 May 2018. At that time, the applicant was unrepresented. I made an order pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to the following issues:
a. whether there was sufficient disclosure to the applicant of the contents of the certificates issued under s.375A of the Migration Act 1958 (Cth) such that the Administrative Appeals Tribunal complied with its obligation to afford the applicant a fair hearing; and
b. the role of an applicant’s authorised recipient, in the context of the refusal by the Administrative Appeals Tribunal of a request by the applicant’s authorised recipient for an extension of time to respond to correspondence.
The matter was listed for a final hearing in relation to those issues on 5 June 2018. At the time of the trial of the matter, the applicant was represented by counsel.
Consideration
The arguments ultimately put on behalf of the applicant centred upon the final invitation to comment sent to him by the Tribunal, via his authorised recipient (Mr Laba Sarkis). Mr Laba Sarkis requested an extension of time for the applicant to respond to that invitation to comment as he was about to go overseas and would not return until the expiry of the period for comment. Mr Laba Sarkis told the Tribunal that he wanted to talk to the applicant about the invitation to comment (presumably so the applicant could more meaningfully reply). The Tribunal declined to extend the time for a response and so advised Mr Laba Sarkis on the last day available for comment.
While no longer directly attacking the certificates in issue in this case, the applicant contends that the Tribunal fell into error in its refusal to extend time for commenting on the certificates (the final invitation to comment dealt with all three certificates) because the Tribunal knew that the applicant required the assistance of Mr Laba Sarkis to deal with documents in the English language, it knew that Mr Laba Sarkis was unavailable during the period for comment and it knew that the applicant did not wish to attend a further Tribunal hearing and hence was reliant upon the documents before the Tribunal.
The Tribunal dealt with the circumstances in its decision at [17]-[18] where it stated:
On 1 June 2017, the applicant’s authorised recipient, Mr Laba Sarkis informed the Tribunal that he could not contact the applicant but had forwarded the correspondence from the Tribunal on to the applicant’s home address. Mr Sarkis further stated that he was travelling overseas from 2 June 2017 and would return on 17 June 2017 and requested an extension of time to respond [to] the correspondence so that he could discuss the matter with the applicant. On 14 June 2017, the Tribunal declined Mr Sarkis’ request. A further request was made for an extension of time, which was once again refused. The Tribunal notes that Mr Sarkis is the applicant’s authorised recipient and not the applicant’s representative.
Furthermore, the Tribunal notes that the Departmental files contain three certificates under s.375A of the Migration Act. On 31 May 2017, the Tribunal wrote to the applicant informing him of the existence of these certificates and that it was satisfied that the certificates were valid as the material contained in the certificates related, amongst other things, to third parties, giving rise to privacy and confidentiality obligations. The Tribunal further notes that information protected by these certificates has been put to the applicant either at the previous Tribunal hearing or under s.359A of the Migration Act.
The Minister points out that the relevant material covered by the first two certificates had previously been disclosed to Mr Singh, either at the first Tribunal hearing or by letter pursuant to s.359A. Mr Singh had also been granted access to the Minister’s Department’s files pursuant to s.362A of the Migration Act, following the earlier decision of this Court.[23]
[23] CB 375
I proceed on the basis that the three certificates were validly issued, consistently with my reasoning in CEF15 & Anor v Minister for Immigration & Anor.[24]
[24] [2018] FCCA 656
It follows that the Tribunal was correct in finding that the certificates were valid and acted in accordance with its duty to disclose so much of the material covered by the certificates as was required and appropriate under s.359A of the Migration Act.
It is plain from the Tribunal’s reasons at [17] that the Tribunal considered that Mr Laba Sarkis’ role was limited to the receipt of documents, and not the provision of advice to Mr Singh or assisting in his response to the invitation to comment. There is support for that approach in s.379G of the Migration Act dealing with authorised recipients. Under s.379G(1), the Tribunal’s obligation is limited to communicating to an authorised recipient, and not receiving material from the authorised recipient. Paragraph 73 of the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 2014 which inserted the provision states:
This amendment clarifies that the role of an authorised recipient is merely to receive documents on behalf of the applicant in connection with the review, as the current provision in subsection 379G(1) is broader than the intended policy position. The amendment also addresses comments made by the Full Federal Court in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156, at paragraph 35, in relation to the similarly worded section 494D of the Act, that an authorised recipient is “constituted effectively as the agent of the visa applicant” because the provision allows the authorised recipient to “do things on behalf of” the applicant. This is broader than the policy intention for the role of an authorised recipient, which is only to receive documents and not to do anything else on behalf of the applicant or person.
I accept the Minister’s submission that the Tribunal’s refusal to extend time fell within the area of its decisional freedom in the circumstances of this case. Mr Singh’s refusal to participate in a further Tribunal hearing was a factor that could have supported either a decision to extend time or to refuse to. Mr Singh’s limited knowledge of English was a factor supporting an extension of time but Mr Singh was not restricted to the services of Mr Laba Sarkis. The Tribunal’s notification of the refusal on the last day for comment limited the possible responses but Mr Laba Sarkis is no stranger to Tribunal proceedings and would have known (and could have told the applicant) that any material given to the Tribunal before it made its decision would have to be taken into account. The decision was not made until 20 June 2017. Mr Singh could be taken to already be acquainted with the adverse information which was the subject of the first two certificates and could reasonably have been expected to respond to the information covered by the third certificate.
Similar arguments were raised in another case involving Mr Laba Sarkis.[25] In that case, a relevant difference was that no extension of time for responding to the invitation had been made. While the Minister relies upon that case for the purposes of this proceeding, I place no particular reliance upon it, other than to note that Mr Laba Sarkis may have learnt from that experience in the present case.
[25] Hossam v Minister for Immigration [2016] FCA 1161
In other respects, I agree with the Minister’s submissions in relation to the grounds of review advanced in the application.
Ground 1
This ground contends there was “strong evidence” about the parties’ spousal relationship, refers to “false allegations” and complains the Tribunal did not show the allegations to Mr Singh. To the extent that this ground seeks impermissible merits review, I reject it.
The Tribunal complied with its procedural fairness obligations under the Migration Act.
The Tribunal correctly interpreted and applied the requirements of subclause 100.221(2) of Schedule 2 to the Regulations and made findings that were open to it.[26] Further, the Tribunal made specific references to material that was provided by Mr Singh and relevant to its findings and noted that he had not provided “recent independent evidence” corroborating their relationship.[27] In these circumstances, it is not open to the Court to infer that the Tribunal overlooked any corroborative evidence such that it fell into error.
[26] He v Minister for Immigration [2017] FCAFC 206
[27] CB 424: [23], CB 425: [25], [26], [28]
As noted above, the Minister's Department's file contains three s.375A certificates (certificates). The first certificate, dated 1 March 2012,[28] covers an allegation from a third party about Mr Singh’s conduct.[29] The second certificate[30] covers records of the Minister’s Department's home visit in 2011 (when the sponsor's daughter stated she did not know Mr Singh and that the sponsor was single) and passenger cards.[31] The third certificate, dated 18 November 2016[32] covers information from a third party indicating that the relationship was not genuine.
[28] CB 115
[29] OSF2008006462, folio 121-122
[30] CB 267
[31] CLF2012/9452, folios 66-68, 73-75
[32] annexure TJD1 to the affidavit of Mr Dimmock affirmed 27 April 2018 (the Dimmock affidavit)
In MZAFZ v Minister for Immigration,[33] Beach J found, in the context of a review under Part 7 of the Migration Act, that the Tribunal denied the applicant procedural fairness by failing to disclose the existence of a certificate issued under s.438(1)(a) of the Migration Act. This judgment was applied in Minister for Immigration v Singh,[34] with respect to a certificate issued under s.375A of the Migration Act (relevant to Part 5‑reviewable decisions).
[33] (2016) 243 FCR 1; [2016] FCA 1081
[34] (2016) 244 FCR 305; [2016] FCAFC 183
In the present matter, the Tribunal proceeded as follows with respect to the certificates:[35]
a)it expressly noted the existence of the three certificates;
b)by letter dated 31 May 2017, it wrote to Mr Singh informing him of the existence of the certificates and its assessment they were valid;
c)it found the certificates were valid because they related (among other things) to third parties, giving rise to privacy and confidentiality obligations; and
d)it noted the information covered by the certificates had been put to Mr Singh under s.359A of the Migration Act (and the gist of some of the material had been put to Mr Singh at the previous Tribunal hearing).
[35] CB 424: [18]
In the circumstances, this matter is distinguishable from MZAFZ and Singh on the basis that the Tribunal put Mr Singh on notice of the certificates by letter dated 31 May 2017. Further, the substance of the information covered by each certificate was put to Mr Singh for comment pursuant to s.359A of the Migration Act by letters dated 21 November 2016, 3 January 2014, and 31 May 2017. In these circumstances, the Tribunal discharged its procedural fairness obligations and there is no basis on which Mr Singh could be found to have suffered practical injustice.[36]
[36] Minister for Immigration v CQZ15 [2017] FCAFC 194 at [65] per Kenny, Tracey and Griffiths JJ
Ground 2
This ground contends that the Tribunal erred by refusing Mr Laba Sarkis’ request for more time to respond to its letter dated 31 May 2017. In that letter, sent by email to Mr Laba Sarkis, the Tribunal notified Mr Singh about all three certificates and invited him to comment on or respond to the substance of the information covered by the third certificate. The s.359A letter was valid. In particular, the letter:
a)specified that Mr Singh could respond in writing;[37]
b)allowed the prescribed period of 14 days for Mr Singh to respond;[38] and
c)was given to Mr Laba Sarkis[39] by email at the last email address provided[40] and was taken to have been received at the end of the same day.[41]
[37] section 359B(1)
[38] section 359B(2); subregulation 4.17(4)
[39] section 379G
[40] section 359(3)(a) and s.379A(5)
[41] section 379C(5)
On 1 June 2017 and 14 June 2017, Mr Laba Sarkis contacted the Tribunal stating he was unable to contact Mr Singh and that he was travelling overseas and requested more time to respond to the s.359A letter. The Tribunal refused the first request by letter dated 14 June 2017 and the second request by email on the same day. In its decision, the Tribunal explained that the requests were refused on the basis that Mr Laba Sarkis was not Mr Singh’s representative.[42] The Tribunal's reasons for refusing to provide Mr Singh more time did not lack an “evident and intelligible justification”.[43]
[42] CB 423: [17]
[43] Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]
Ground 3
This ground contends that the Tribunal “failed to take into account” evidence previously provided in support of the relationship. While the Tribunal did not expressly refer to all the material provided by Mr Singh throughout the application and review process, the Tribunal is not required to refer to every piece of evidence.[44] Further, the Tribunal made specific references to material that was provided by Mr Singh and relevant to its findings and correctly noted that Mr Singh had not provided “recent independent evidence” corroborating their relationship.[45]
[44] Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184
[45] CB 424: [23], CB 425: [25], [26], [28]
This ground also contends that the Tribunal had no basis to place weight on the “December 16 allegation”. The Tribunal did “place weight on the December 2016 allegation”.[46] It was open for the Tribunal to do so in performing its fact finding task.[47] Moreover, by letter dated 31 May 2017, the Tribunal complied with its procedural fairness obligations in relation to the substance of the allegation.
[46] CB 425: [27]
[47] Tran v Minister for Immigration [2004] FCAFC 297 at [5]-[7]
This ground also refers to the grant of the temporary partner visa and the Court's remittal of the first Tribunal decision. The delegate's decision in relation to the temporary visa and the Court's decision to remit the first MRT's decision are not relevant to the Tribunal's decision or this application for judicial review. Further, the error identified by the Court was remedied when Mr Singh was given the Department and Tribunal files on 17 November 2016.[48] Moreover, as set out in relation to Ground 1, the Tribunal also complied with its procedural fairness obligations in relation to the substance of the information covered by the certificates.
[48] CB 423: [10]
Ground 4
This ground contends that the Tribunal's decision was “unreasonable” and also refers to the Tribunal's refusal of Mr Laba Sarkis’ request for more time to respond to its letter dated 31 May 2017. As set out in relation to Grounds 1 and 2, the Tribunal correctly interpreted and applied the requirements of subclause 100.221(2) of Schedule 2 to the Regulations and made findings that were open to it. Further, the Tribunal's reasons for refusing to provide Mr Singh more time did not lack an “evident and intelligible justification”.[49]
[49] Li at [76]
Conclusion
Mr Singh has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 June 2018
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