SINGH v Minister for Immigration

[2018] FCCA 1306

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1306

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether there is any utility in granting an adjournment – whether the Tribunal misunderstood or misapplied the relevant law – whether the Tribunal’s decision to proceed to determine the matter was unreasonable or illogical – grounds fails to make out any reasonably arguable case of jurisdictional error – application dismissed under r.44.12 of the Federal Circuit Court Rules.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss.5F, 476

Migrations Regulations 1994, reg.1.15, cl 820.221 of Schedule 2

Applicant: GURMEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3911 of 2017

Judgment of: Judge Street

Hearing date: 22 May 2018

Date of Last Submission: 22 May 2018

Delivered at: Sydney

Delivered on: 22 May 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3911 of 2017

GURMEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is a show cause hearing under r.44.2 of the Federal Circuit Court Rules 2001 (“the Rules”) in respect of proceedings seeking a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 November 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of India and arrived in Australia on 17 September 2008 as the holder of a Student visa. On 17 June 2010, the applicant again entered Australia as the holder of a Student visa. The applicant then applied for a further Student visa which was refused, and the applicant then sought to challenge that decision in the Tribunal and then before the Federal Court of Australia. The applicant then remained in Australia unlawfully for 156 days. The applicant’s last substantive visa expired on 15 December 2010. The applicant lodged the application for the Partner visa the subject of the current Tribunal’s decision on 19 December 2013, as a result of a relationship allegedly commencing on 31 December 2012 and the parties being married on 7 July 2013.

Before this Court

1. The matter was fixed today for hearing as a result of orders made by a Registrar on 29 January 2018, giving the applicant an opportunity to put an amended application, affidavit evidence and submissions. No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing under r.44.12 of the Rules, and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that his wife was sick on the day of the hearing before the Tribunal, and that he now had medical material that he wanted to put on in support of her illness, and that his wife had been an alcoholic, which was the reason for her non-attendance. The applicant during the course of the hearing noted that his wife had arrived at the hearing before this Court. This Court explained to the applicant that it was not in a position to make fresh findings in relation to the applicant’s claims for a partner visa.

4. The applicant then sought an adjournment on the basis that he wanted to put on further material and that he needed further time in order to put on that further material. The adjournment application was not consented to by the first respondent. The applicant had an opportunity, as a result of the orders made on 29 January 2018 by the Registrar, to put on further material and did not do so. I am not satisfied that there is any admissible evidence that the applicant would be able to adduce to warrant an adjournment in the interests of the administration of justice in the circumstances of the present case. The applicant repeated his request for an adjournment on three occasions throughout the course of the oral argument. Nothing said by the applicant from the bar table identified any proper basis upon which the Court could be satisfied that there would be any utility in granting an adjournment. I also take into account the apparent want of merits in the substantive application in considering whether an adjournment should be granted.

5. The applicant in the course of seeking an adjournment indicated a desire to call his wife and also wished to tender further material relating to her alleged medical condition. That medical material was not before the Tribunal, and although there is reference to an explanation proffered by the applicant that he had left the medical certificate at home, the applicant’s submissions today were that he had a medical certificate dated the same day as the hearing. The applicant was well aware of the issue concerning his wife’s failure to given evidence as it was addressed in detail by the Tribunal. The applicant has had a reasonable opportunity to put on any relevant evidence. The Court is not in a position to receive fresh evidence in respect of the applicant’s explanation for the absence of his wife at the Tribunal hearings. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.

6. From the bar table, the applicant maintained that it was not fair that his wife had not been called at the Tribunal hearing and that the Tribunal should have adjourned the matter for a further occasion so that his wife could be called. In that regard, it is appropriate to record the history of the matter before the Tribunal.

7. On 16 March 2017, the applicant was invited to attend a hearing on 2 May 2017. The letter from the Tribunal dated 16 May 2017 explained that the Tribunal was unable to make a favourable decision on the information before the Tribunal. The letter not only invited the applicant to adduce further material in support of the relationship and particular factors, but the letter also expressly referred to the desire of the Tribunal to hear from the sponsor and the need for the applicant to arrange for the sponsor to attend the hearing.

8. On 30 April 2017, the applicant requested the hearing of 2 May 2017 be rescheduled, and provided medical certificates in relation to himself that he was unfit to attend Court due to vertigo. On 16 June 2017, the applicant was invited to attend a hearing on 25 July 2017. That letter repeated the same invitation to the applicant to ensure that his sponsor attended the hearing.

9. On 22 July 2017, the applicant requested that the hearing of 25 July 2017 be rescheduled. The applicant provided another medical certificate alleging that he was suffering from a panic attack and anxiety, and that he was unfit to travel. On 24 July 2017, the Tribunal wrote to the applicant identifying that the hearing would be rescheduled to 30 October 2017 and again informed the applicant that the Tribunal wanted to hear from his sponsor, and for the applicant to arrange for her to attend the hearing.

10. At the hearing on 30 October 2017, the applicant was asked why the sponsor was not in attendance. The applicant told the Tribunal that the sponsor had been ill the previous evening, and stated that there was no medical evidence to support this, as he intended to take the sponsor to a doctor after the Tribunal hearing. The Tribunal told the applicant that as he claimed to be in a genuine, continuing spousal relationship with the sponsor, it is vital to his case that the sponsor provides her evidence in person at the Tribunal hearing. The Tribunal told the applicant of the importance of the sponsor appearing before the Tribunal because the Tribunal identified it had concerns about the genuine and ongoing nature of the parties’ relationship, and because it did not have before it relevant information to support the applicant and his sponsor being in a genuine and continuing relationship since June 2016. The Tribunal invited the applicant to provide further evidence to support that he continued to be in a genuine, spousal relationship and the hearing was adjourned.

11. On 31 October 2017, the Tribunal again, wrote the applicant, inviting the applicant to attend a hearing on 15 November 2017. The Tribunal expressly set out the need for the applicant to provide medical evidence if unable to attend from a doctor in support. The Tribunal also repeated the request that had earlier been made, for his wife to attend the hearing. On 7 November 2017, the applicant’s migration agent advised that he had been retained and they had just received instructions, in relation to the proposed resumed hearing on 15 November 2017. On 8 November 2017 and 14 November 2017, the Tribunal sent the applicant reminders of the hearing.

12. On 15 November 2017, the applicant appeared on his own without the spouse sponsor in attendance. At the hearing on 15 November 2017, the applicant told the Tribunal that the sponsor told him the night before the hearing that she would attend the hearing but that on the morning of the hearing, the sponsor changed her mind. The applicant said the sponsor had been crying and was psychologically concerned about the applicant’s future. The applicant stated that the sponsor is suffering from tension, and that he obtained a medical certificate for her last week, which he left at home. The applicant said that the parties lived together and, when the visa is granted, they plan to have a baby and want to travel to India to visit his family.

13. The Tribunal told the applicant that at the adjourned hearing, it had explained to the applicant how vital it was that his sponsor provided her evidence in person. The Tribunal said to the applicant on that occasion, that this was because there is no independent evidence before the Tribunal, since June 2016, about the parties’ relationship. The Tribunal referred to the applicant explaining that he could not continue with a migration agent because of his finances, and that he had decided to deal with the Tribunal directly. The Tribunal told the applicant to ensure that he informed the Tribunal about any change. The applicant confirmed that the Tribunal had all relevant information about the parties’ spousal relationship, regarding the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment to each other.

14. The applicant claimed, from the bar table, that the refusal of a further adjournment to permit his wife to give evidence was unfair or unreasonable. The Tribunal, in its reasons, provided an evident and intelligible justification for its decision to proceed to determine the matter, given the history as identified above in respect of the opportunities given to the applicant to have his spouse attend. The Tribunal’s decision to proceed to determine the matter cannot be said to be unreasonable or illogical. No arguable case of jurisdictional error is made out by reason of the applicant’s disagreement with the Tribunal proceeding to determine the matter, on the material before it.

15. The Tribunal in its reasons identified the requirements of s.5F of the Act and also identified the considerations that the Tribunal was required to take into account under reg.1.15A(3) of the Migration Regulations 1994 (“the Regulations”) which was also incorporated in the Tribunal’s reasons, as an attachment. The Tribunal’s reasons reflect a consideration of each of the factors under reg.1.15A(3) of the Regulations. The Tribunal found there was a lack of documentary or corroborative evidence about the parties’ spousal relationship, since June of 2016. 

16. It was in those circumstances the Tribunal found the applicant was not credible and placed limited weight on his evidence. The Tribunal was not satisfied that, at the time of the decision, the parties were in a spousal relationship. It was in those circumstances the Tribunal found the applicant did not meet the requirements of cl.820.221 of Schedule 2 to the Regulations and affirmed the decision under review.

The grounds

1. The grounds in the originating application are as follows:

   1. I believe that Administrative Appeal Tribunal has fell into jurisdictional error in making this finding that I did not meet the requirements of cl.820.221 (2) and Schedule 3 criteria. I believe so because of Marriage certificate, statutory declarations by sponsor and number of persons, family, party photographs evidences and medical situation I meet 820.221 (2)

   2. Schedule 3 criteria I submitted medical certificate dated 17/07/2017 stating I was unfit to travel at the time of application.

2. The two grounds reflect a disagreement with the adverse finding by the Tribunal and in substance are an invitation to this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. There is nothing on the face of the Tribunal’s reasons to suggest the Tribunal misunderstood or misapplied the relevant law, under cl.820.221 of Schedule 2 to the Regulations. Further, the Tribunal did not have to consider the Schedule 3 criteria, in the circumstances of the present case, where the Tribunal found that the parties were not in a genuine spousal relationship. The applicant’s disagreement with the adverse finding does not identify any arguable case of jurisdictional error in ground 1.

3. In relation to ground 2, for the reasons already given the Schedule 3 criteria had no application, in circumstances where the Tribunal was not satisfied the parties were in a genuine spousal relationship at the time of decision. The reference in the medical certificate, dated 17 July 2017 also has nothing to do with the hearing that took place on 15 November 2017. The applicant’s alleged unfitness to travel in July 2017 identifies no basis upon which it could be said it was unreasonable for the Tribunal to proceed to determine the application for the partner visa, after the hearing on 15 November 2017. No reasonably arguable case of jurisdictional error is made out by ground 2.

Conclusion

1. The grounds in the application fail to identify any reasonably arguable case of jurisdictional error. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Rules. Accordingly, the application is dismissed under r.44.12 of the Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 July 2018