Singh v Minister for Immigration
[2020] FCCA 2540
•9 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2540 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal failed to take into account relevant considerations and evidence – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 476 Migration Regulations 1994 (Cth), reg 1.15A, cls 820.211, 820.221 |
| Applicant: | NISHAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3355 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 9 September 2020 |
| Date of Last Submission: | 9 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Karp via Microsoft Teams |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr T Reilly via Microsoft Teams |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
Leave is granted to the applicant to rely upon the amended application annexed to the affidavit of David Kenneth Brooks sworn on 20 July 2020 and directs that the applicant file and serve an amended application in that form on or before 5:00pm on 11 September 2020.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,400.00
Date of order: 9 September 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3355 of 2019
| NISHAN SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 November 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa (“Partner visa”).
The applicant is a citizen of India. On 1 March 2008, the applicant arrived in Australia as the holder of a Student visa. On 12 June 2012, the applicant applied for a Partner visa on the basis that he was married to the sponsor, an Australian citizen.
On 28 November 2013, the Delegate refused to grant the applicant a Partner visa on the basis that there was no genuine and continuing relationship between the applicant and the sponsor.
On 12 December 2013, the applicant applied to the Migration Review Tribunal for review of the Delegate’s decision. The applicant claimed that the relationship had been genuine but had broken down due to family violence.
There have been two earlier Tribunal decisions that were set aside by consent.
On 16 July 2019, the currently constituted Tribunal conducted a hearing at which the applicant gave evidence and presented arguments. The applicant claimed that he was introduced to the sponsor through his brother’s former wife, who was also a drug addict. The applicant also claimed that he had not spoken to his brother for two years and only found out when the applicant and his brother were allegedly reunited. The applicant also claimed that he was unaware of the sponsor’s drug addiction until she was arrested by police.
The Tribunal in its reasons identified the background to the review application. The Tribunal identified the relevant law, including in an attachment incorporated by pagination in the Tribunal’s reasons. The Tribunal identified that it had received oral evidence from other witnesses on behalf of the applicant. The Tribunal identified that submissions were provided on behalf of the applicant in relation to the criteria under reg 1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) as to whether there was a genuine and continuing relationship with the sponsor.
The Tribunal identified the issue being whether the applicant was in a genuine and continuing relationship with his sponsor, whether there were compelling reasons for not applying the Schedule 3 criteria to the applicant and whether the applicant has suffered family violence.
The Tribunal referred to an earlier letter that was sent to the applicant under s 359A of the Act. The Tribunal referred to the applicant’s response to that s 359A letter, including the applicant’s contention that his wife is a drug addict, her mental situation is not stable, she did not remember things or did not bother to remember things and that the relationship broke down because he wanted her to abandon the drugs and become a normal person.
The Tribunal referred to the applicant’s evidence at the third hearing.
The Tribunal referred to the applicant’s assertion that he was unaware that his sponsor was a drug addict addicted to ice.
The Tribunal referred to the applicant’s daughter living at a particular location and the applicant said that she lived there most of the time. The Tribunal referred to one of the tests the sponsor had set the applicant involving the applicant’s personal care and concern for the daughter and yet, despite that, she lived essentially permanently at a particular location and her mother was not working. The applicant asserted there was a plan to bring her back to Parramatta.
The Tribunal explored with the applicant why his brother’s marriage broke down and the applicant identified that his brother had told him his wife was a drug addict. The Tribunal raised with the applicant the unusual nature of the brothers both marrying drug addicts who were friends and introduced the parties to each other. The Tribunal referred to the applicant contending that he did not know she was a drug addict. The Tribunal raised with the applicant that both brothers have since divorced and have remarried Punjabi women. The applicant maintained that he only found out about his brother’s wife being a drug addict after they were reunited.
The Tribunal referred to evidence given by a witness about the applicant’s relationship with the sponsor and in relation to having dinner with the sponsor and the applicant and going to the Opera House when the applicant’s mother came out from India. The Tribunal referred to the witness having photographs. The Tribunal referred to the witness’s belief that the relationship was genuine.
The Tribunal referred to the statutory provisions and the requirements of reg 1.15A and cl 820.211 of the Regulations.
The Tribunal found that, on the evidence, the applicant and the sponsor were married to each other under a marriage that was valid for the purposes of the Act as required by s 5F(2)(a) of the Act.
The Tribunal referred to the financial aspects of the relationship. The Tribunal identified the absence of knowledge by the applicant in relation to the sponsor’s status at Centrelink. The Tribunal found that this was an important consideration of the financial aspects of the relationship because it did not indicate a verifiable pooling of finances. The Tribunal referred to the applicant’s explanation and found it implausible.
The Tribunal referred to there being some evidence of legal obligations, such as a rental lease, which could logically also be a joint liability in the case of the bond. The Tribunal, however, found that there were no legal obligations owed to the other party according to the applicant.
The Tribunal took into account the absence of a will and the ignorance of the applicant in relation to his sponsor’s Centrelink status.
The Tribunal found that joint bank account transactions presented to the Tribunal previously were not conclusive evidence that the parties pooled their financial resources.
The Tribunal found that the evidence supported a finding that the financial aspects of the relationship did not indicate that it was a spousal relationship at the time of the Partner visa application.
The Tribunal referred to the nature of the household. The Tribunal referred to the sponsor and the applicant telling the Department inconsistent evidence in regards to their living arrangements, especially in relation to the care of the sponsor’s daughter.
The Tribunal referred to the sponsor being able to give a lengthy account of her circumstances in the context of the assertion by the applicant that the inconsistencies between the evidence of the applicant and the sponsor should be seen in the context of the sponsor’s drug addiction. The Tribunal expressly noted that the sponsor denied being under the influence of drugs at the interview. The Tribunal found that there was no evidence or even suggestion that, at the time of the interview being conducted with the sponsor, the sponsor was affected by drugs.
The Tribunal took into account the applicant’s lack of knowledge as to the sponsor suffering a thyroid problem and that he did not know the condition for which she needed medication.
The Tribunal referred to the various inconsistencies in the evidence of the applicant and the sponsor in relation to the nature of their household. The Tribunal referred to the suggestion advanced by the applicant that the sponsor’s daughter lived with them at least part of the time, whereas, it appeared that the sponsor’s daughter lived consistently with the grandmother rather than with the applicant and the sponsor in a family household.
The Tribunal referred to the applicant’s alleged plan in relation to the daughter and gave the explanation little weight in light of the accumulated evidence.
The Tribunal found that the sponsor and the applicant gave evidence wherein they disagreed on the domestic caring arrangements of the sponsor’s daughter and gave that information significant weight. The Tribunal was satisfied that the sponsor’s child did not live with the parties in their household due to the sponsor’s drug addiction.
The Tribunal did not accept that the applicant could have been unaware of the sponsor’s other major health problems, being the thyroid condition, or that he was initially unaware of her serious drug problem, which was long term. The Tribunal found that those health conditions would have been readily apparent if the parties had been in a genuine spousal household living arrangement.
The Tribunal found that the nature of the parties’ household was not spousal in nature.
The Tribunal then referred to the social aspects of the relationship. The Tribunal referred to how the applicant and the sponsor represented themselves to other people and the opinions of friends.
The Tribunal referred to the applicant’s evidence about why the sponsor’s mother and brother were too busy to attend the parties’ wedding. The Tribunal referred to the evidence indicating that none of the sponsor’s family provided statements in support of the relationship.
The Tribunal referred to the applicant’s evidence suggesting that the sponsor’s family, the mother in particular, did not object to the wedding. The Tribunal referred to the applicant’s assertion that they were too busy to attend and so they decided to have a simple wedding.
The Tribunal raised the concern as to whether a mother would normally be too busy to attend her daughter’s wedding. The Tribunal referred to the applicant’s evidence that he had only met the sponsor’s mother on one or two occasions before the marriage.
The Tribunal expressly referred to the applicant’s mother having stayed with the parties and the applicant’s mother having given evidence at the earlier Tribunal hearing.
The Tribunal also expressly referred to the submissions advanced by the applicant’s representative, which included an express reference to the significant number of the applicant’s friends and acquaintances that knew the sponsor and considered the relationship was a genuine one.
The Tribunal made a finding based on the evidence cumulatively that there was little recognition of the parties’ spouse relationship by the sponsor’s family. The Tribunal took into account that the fact that the sponsor’s daughter lived with her grandmother was a strong indication of this as well as the sponsor being unaware that the applicant had a Facebook account and was unaware of his age.
The Tribunal also took into account the applicant’s evidence being unclear about the sponsor’s daughter’s place in the household, claiming to have taken her to school on the train, that it did not appear that the daughter had lived with the parties at all, if ever, and that the daughter was cared for by the grandmother.
The Tribunal expressly referred to a witness at the most recent hearing indicating that he had seen the applicant with his mother‑in‑law at the supermarket. The Tribunal gave that evidence little weight as an after‑the-event explanation for the earlier adverse observations of distance and non‑recognition by the sponsor’s family.
The Tribunal referred to the applicant and sponsor’s inconsistent responses in relation to questions regarding religious ceremonies and found the applicant’s explanations contradictory.
The Tribunal, having examined the social aspects of the relationship between the parties, found it indicated that the relationship was not a spousal one.
The Tribunal expressly referred to the contradictory evidence about access to social media and attendance at religious services supporting the Tribunal’s finding.
The Tribunal referred to the nature of the persons’ commitment to each other. The Tribunal identified that at the time of the application the parties had been married for under three months. The Tribunal identified that the applicant and the sponsor claimed they had lived together for that period and spent time together, including short stays in places like the Gold Coast and Brisbane. The Tribunal referred to the applicant’s evidence that initially the sponsor was “all good” and that they used to help each other.
The Tribunal referred to the evidence given by the applicant and the sponsor during the interview and to inconsistencies in the answers given to questions in that regard as follows. The sponsor claimed she did not receive welfare payments while the applicant advised she did. The sponsor asserted she was not aware she had entered into a particular society wedding rites at her own wedding while the applicant asserted they did. The sponsor was not aware of the applicant’s religious beliefs. The sponsor could not recall that it was on the applicant’s birthday that she first met the applicant. There the sponsor advised that there were no fewer than two occasions that she lived at her mate’s house because of fighting while the applicant claimed that she never temporarily moved out. The sponsor claimed that her daughter lived with her and the applicant while the applicant claimed the sponsor’s daughter lived with the grandmother. The sponsor could not recall the applicant’s mother’s name until she viewed her own marriage certificate. The applicant claimed the sponsor knew a lot about religion as she spent time with his mother when she was in Australia, yet according to the applicant’s oral evidence, his mother could not speak English and relied on the applicant to communicate. The applicant indicated that they attended a Sikh temple and sometimes a mosque and sometimes a church, despite this not being consistent with the sponsor’s own beliefs. The applicant also indicated that the sponsor had not been in trouble with the police or justice system at the time of interview.
The Tribunal referred to the applicant’s lack of awareness of the sponsor’s individual circumstances, such as her thyroid condition, and the Tribunal did not accept the applicant’s explanation as plausible in relation to a spousal relationship of some longevity.
The Tribunal referred to the applicant’s most recent submission addressing the requirements of reg 1.15A(3) of the Regulations. The Tribunal identified the submission as addressing the sponsor’s drug taking. The Tribunal referred to the applicant’s oral evidence in relation to visiting a psychologist to deal with the sponsor’s violence towards him, speaking of his own anxiety, that he blamed the drug addiction for the sponsor’s mistakes in the interview and that she left him after committing family violence on him.
The Tribunal did not disregard the claim that the sponsor could have behaved aggressively as she was an ice addict. The Tribunal, however, pointed out that the applicant had not indicated that she took certain medicine in 2013 and that he was unaware of her thyroid condition. The Tribunal identified that the applicant maintained that he was unaware of the sponsor’s drug addiction when they were married.
The Tribunal also took into account that the applicant and his brother had both married drug addicts. The Tribunal identified that the applicant’s brother had succeeded in getting a partner visa due to family violence. The Tribunal identified that the applicant had subsequently also made a family violence claim but that he said he was unaware of his brother’s wife’s addiction at the time.
The Tribunal found the applicant’s explanation for his unawareness of the sponsor’s drug addiction when the relationship began to be implausible. The Tribunal gave significant weight in making this finding to the coincidental addiction situation between the applicant’s and his brother’s wife and their mutual introduction to each other. The Tribunal found this was too coincidental and a significant fact to allow the applicant’s claim of being ignorant of her addiction to stand.
In these circumstances, the Tribunal concluded that the relationship was concocted to secure a positive visa outcome for the applicant. The Tribunal also took into account the inconsistencies in the applicant’s evidence.
The Tribunal found the nature of the persons’ commitment to each other indicated that the mutual commitment was not present in this relationship. The Tribunal was satisfied that the applicant only ever saw the relationship as an avenue for a successful migration outcome.
The Tribunal referred, having considered the oral evidence of three witnesses. The Tribunal noted that two of the applicant’s friends claimed that the applicant had told them of his partner and one witness claimed he had alleged an incident of family violence. The witness appeared, however, to confuse the dates of the event from that outlined by the applicant. The Tribunal referred to the second witness’s evidence being of broad observations. The Tribunal also expressly referred to having considered the evidence of the applicant’s mother and again referred to the applicant’s mother having claimed to live with the parties for a few months and that she shared her observations with the Tribunal. The Tribunal accepted that in the applicant’s mother’s views, the parties were married to one another, which they were at the time.
The Tribunal referred to having concluded from the plethora of inconsistencies that the relationship between the parties was entirely a fiction created for a positive visa outcome.
The Tribunal found that the requirements of s 5F(2) of the Act were not met at the time that the Partner visa application was made and at the time of the decision the parties are permanently and separately divorced.
The Tribunal found that the applicant did not meet the criteria under cls 820.211(2)(a) and 820.221 of the Regulations.
The Tribunal identified that, having found that the parties were not ever in a genuine and continuing relationship, it was unnecessary to determine the claim of alleged family violence.
Accordingly, the Tribunal affirmed the decision under review.
Grounds in the amended application
The grounds in the amended application are as follows:
3. The Tribunal failed to complete the exercise of its jurisdiction.
Particulars
(a) Failure to lawfully consider evidence given by the following witnesses at hearing and relevant to the matters in Migration Regulations 1.15(3)(c) and 1.15(3)(d),
(i) Manjinder Singh.
(ii) Gurpreet Singh Kahlon
(iii) Ranjit Singh
(iv) Ramanbir Kaur
(v) Kulwinder Singh
(b) Failure to lawfully consider written evidence relevant generally to the genuineness of the applicant's marital relationship with Sophia Swart,
(i) Amarjit Kaur, the applicant's mother,
(ii) Robert Marcel Gachon, psychologist.
(c) Failure to lawfully consider the written evidence of the applicant as to the effect of drugs on Ms Swart's memory, which was relevant to the veracity of the evidence that she had given to a previous Tribunal.
(d) Failure to lawfully consider a written submission to the effect that it is not reasonable to reject the totality of the evidence in support of the married relationship simply on the basis of an interview with a sponsor who was struggling with a drug addiction and may or may not have been under the influence of drugs during the interview.
Mr Karp of counsel on behalf of the applicant made submissions in relation to the four particulars that there had not been a genuine intellectual engagement with the evidence by the Tribunal. The submission was, in substance, nothing more than an invitation to merits review.
Particular (a)
Mr Karp’s reference to the evidence of the particular witnesses in paragraph (a) did not identify any material or significant evidence that was not the subject of genuine intellectual consideration by the Tribunal. The Tribunal expressly referred in paragraph 6 of its reasons to the evidence of witnesses and further referred to the evidence of witnesses in its reasons, as summarised above. There is no basis to find that the Tribunal did not take into account the evidence of the witnesses, notwithstanding Mr Karp’s submissions to the contrary. There was no material or significant evidence identified by the witnesses that the Tribunal was required to further expressly engage with in the circumstances of the findings made by the Tribunal in this case.
The Tribunal does not have to refer to every item of evidence before the Tribunal and is not required to specifically discuss and evaluate every piece of evidence. The Tribunal did refer to the witnesses, and the fifth witness’s evidence was summarised at paragraph 28 of the Tribunal’s reasons. The Tribunal, however, was not bound to accept the witnesses’ opinions. It is apparent that the Tribunal took into account the applicant’s mother’s views as to there being a marriage between the sponsor and the applicant and it also expressly referred to the applicant’s mother’s evidence about having lived with the parties.
The Court accepts the first respondent’s submission that the statement from the particular person at page 662 of the Court Book concerning claims of domestic violence was not evidence to which the Tribunal needed to make express reference in circumstances where the Tribunal found there was not a genuine relationship.
The Tribunal found that it was not necessary to consider whether there was family violence, nor was the Tribunal in any way bound by the applicant’s mother’s views about the relationship. There is no basis to infer that the Tribunal overlooked any of the witnesses’ evidence. The Tribunal expressly referred to the contention as to the sponsor being affected by drugs and found that she was not so affected at the time of the interview.
The Tribunal also made express reference to the number of witnesses advanced in the submissions as having indicated there was a genuine relationship. There is no basis to infer that the Tribunal overlooked this submission or the evidence. The Court does not accept that there was any material or significant evidence that required further express consideration by the Tribunal in respect of the persons identified by the particulars to particular (a). The Tribunal reasons as summarised above evidence that the Tribunal had a genuine intellectual engagement with evidence and submissions advanced by the applicant. No jurisdictional error is made out by particular (a).
Particular (b)
In relation to particular (b), it is apparent that the Tribunal made express reference to the mother’s evidence and her observations about the parties’ relationship. This was not a particular that has any foundation and should not have been advanced. The Tribunal’s reasons reflect identifying the applicant’s mother’s evidence in relation to having lived with the parties and her view of the relationship. The Tribunal was not bound by the same. There was no failure to have a genuine intellectual engagement with the mother’s evidence.
In relation to the reference to the psychologist’s evidence, it is apparent that the Tribunal recognised that the applicant had seen a psychologist. The psychologist’s evidence, whilst contended by Mr Karp to have been material, was evidence that primarily addressed whether there may have been family violence. Mr Karp suggested it was implicit that the psychologist must have accepted that there was a domestic relationship in relation to that family violence. That proposition does not follow. The psychologist did not address that issue and there is no basis to find that the psychologist’s evidence was material or significant evidence to which express reference needed to be made.
The Court does not accept the submission that the Tribunal overlooked the psychologist’s evidence and does not accept the proposition that the Tribunal was required to make express reference to that evidence in the circumstances of this case and, in particular, the finding in relation to the relationship being concocted to achieve a marriage outcome.
Mr Karp submitted that that was a ground infected with error because of the errors advanced in ground 3. No challenge was made to the actual finding that this was a concocted relationship. Further, in light of that finding this is not a case where the evidence of the psychologist could be said to have been material or significant and require express reference. No jurisdictional error is made out by particular (b).
Particular (c)
In relation to the particular (c), this again falls into the same category as the ground in relation to the applicant’s mother in that there is no proper basis to advance the assertions that there was a failure to consider the claims relating to the memory of the sponsor. The Tribunal expressly referred to the same and expressly referred to the sponsor not being affected by drugs at the time of the interview. No jurisdictional error is made out by particular (c).
Particular (d)
In relation to particular (d), it is erroneously suggested that the Tribunal rejected the evidence simply on the basis of the interview with the sponsor who may have been under the influence of drugs during the interview. First, that flies in the face of the express finding by the Tribunal that she was not so drug affected during the interview. Secondly, the Tribunal’s findings were not solely based on the interview with the sponsor, but on the face of the reasons the Tribunal properly considered the whole of the requirements as to whether or not there was a genuine relationship and the Tribunal made adverse findings that were open. Those adverse findings cannot be said to lack an evident and intelligible justification given the reasons as summarised above. There is no proper basis to assert or find that the Tribunal did not have a genuine intellectual engagement with the whole of the applicant’s claims and evidence. It was not necessary for the Tribunal to refer to every item of evidence before the Tribunal. No jurisdictional error is made out by particular (d).
Ground 3 fails to make out any jurisdictional error.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 September 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 13 November 2020
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