Singh v Minister for Immigration

[2018] FCCA 777

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 777

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal – application for partner visa – applicant did not hold substantive visa at time of application – compelling reasons to waive requirement of visa – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 474; 476

Migration Regulations 1994, r.8.20.211

Cases cited:
Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: JASWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATION APPEALS TRIBUNAL

File Number: ADG 446 of 2016

Judgment of: Judge Brown

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Adelaide

Delivered on: 6 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Singh in person

Counsel for the First Respondent: Ms Milutinovic

Solicitors for the Respondent: Sparke Helmore

Counsel for the Second Respondent: Submitting appearance

ORDERS

1. The application filed 29 December 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 446 of 2016

JASWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATION APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings is Jaswinder Singh.  He seeks the quashing of a decision of the Administrative Appeals Tribunal “the AAT” made on 24 November 2016, which confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[1] not to grant him a temporary partner visa, pursuant to the provisions of the Migration Act 1958 “the Act”.

   [1]  As the Minister for Home Affairs was previously known

2. It is necessary to place the current application in the context of the applicant’s migration history in Australia.  The applicant is a citizen of India, who arrived in this country on 9 December 2008, pursuant to a 572 visa (Vocational Education).  This visa was valid until 15 March 2011. 

3. The applicant was granted a further 572 visa on 4 May 2011, which expired on 12 September 2011.  Thereafter, on 23 August 2011, he unsuccessfully applied for a 485 visa [Skilled Provisional].

4. The decision to refuse him the 485 visa was subject to review in the Migration Review Tribunal “the MRT” and on the failure of that application to judicial review in the Federal Circuit Court.  The judicial review proceedings concluded on 2 December 2013.  Thereafter, the applicant sought Ministerial intervention on his behalf.  However, the Minister declined to consider the matter on 24 July 2014. 

5. In all these circumstances, it is clear that the last time the applicant had a substantive visa, pursuant to the Act, was on 12 September 2011.  After this date, he has held a variety of bridging visas, particularly whilst there has been litigation concerning his immigration status before this court. 

6. On 3 February 2014, the applicant married Servina Gbojueh.  Ms Gbojueh was born in Liberia but is an Australian citizen.  On 5 April 2014, the applicant applied for a Partner (Temporary) (Class UK) visa (spousal visa) pursuant to the provisions of the Act under the sponsorship of Ms Gbojueh. 

7. On 30 October 2014, a delegate of the Minister refused the application for the partner visa.  This application was subject to review in the MRT, which was the administrative precursor to the AAT. 

8. The MRT affirmed the decision not to grant Mr Singh a partner visa on 14 May 2015.  This determination was, in turn, subject to judicial review proceedings in the Federal Circuit Court, which concluded on 23 May 2016. 

9. On this date, the decision of the MRT was quashed on the basis that the Minister for Immigration & Border Protection conceded that the Tribunal had fallen into error by failing to consider whether there were compelling reasons pertaining to the applicant, at the time of hearing, which justified the granting of the visa in question.  This outcome arose as a consequence of the matters identified by the Full Court of the Federal Court in Waensila v Minister for Immigration & Border Protection[2]. 

   [2]  Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32

10. As a consequence of the quashing of the decision, made on 14 May 2015, the applicant’s case returned for further review, before the AAT on 24 November 2016, which reached the same conclusion as the earlier hearing of the MRT, after considering information up to the date of hearing.  It is this decision, which is the subject of the current proceedings. 

The legislative provisions applicable

1. Section 65 of the Migration Act, in general terms, requires the Minister to grant a visa, pursuant to the Act, if satisfied that any criteria, prescribed by either the Act or regulations made under it, have been satisfied by the applicant concerned. 

2. In the case of applications for spousal visas, the relevant criteria are specified in clause 820.211 of the Migration Regulations 1994.  In general terms, any applicant must establish that he or she is the spouse or defacto partner of a person, who is either an Australia citizen or an Australia permanent resident and is subject to the sponsorship of that spouse or defacto partner. 

3. However, in addition, such an applicant is required to satisfy conditions stipulated in schedule 3 of the Regulations, unless the Minister considers that there are compelling reasons for not applying those criteria [see clause 820.211(2)(d)(ii)].

4. In general terms, an applicant for a spousal visa must hold a substantive visa or make the application within 28 days of having held such a visa, unless compelling reasons are made out.

5. In this particular case, the last date on which the applicant concerned held a substantive visa was 12 September 2011.  However, the application was made on 15 April 2014, nearly three years later.  Accordingly, it was necessary for the AAT to consider whether there were compelling reasons for not applying this criteria, in the applicant’s case. 

The decision of the AAT

1. In the current matter, under the heading Schedule 3 Criteria (clause 820.211(2)(d)) the AAT posed for itself the following question: 

   “It is not in dispute that the applicant in the presence case did not have a substantive visa at the time of the application.  As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfied the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.  These criteria are set out in the attachment to this decision.”[3]

   [3]  See casebook at page 196 [19]

2. Accordingly, in these circumstances, the question, which the Tribunal posed for itself, in exercising the jurisdiction conferred upon it, was whether there were compelling reasons sufficient to grant the visa in question, notwithstanding the applicant’s failure to satisfy the regulatory pre-condition in respect of the visa. 

3. In this context, the Tribunal noted that the expression compelling reasons was not formally defined in the applicable legislative regime.  The Tribunal did however consider relevant judicial analysis regarding how the phrase was to be interpreted, in the context of administration decision making. 

4. In particular, reference was made to MZYPZ v Minister for Immigration & Citizenship[4] in which Bromberg J considered that the expression meant “reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria.”  In particular, the relevant “circumstances must be sufficiently powerful to lead a decision-maker to make a positive favour of waiving the required criteria.” 

   [4]  MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478 at [10]

5. In determining whether compelling circumstances existed, sufficient to grant the visa, the Tribunal considered the evidence provided by the applicant, particularly in respect of the nature of his relationship with Ms Gbojueh.  In so doing, the Tribunal noted that the applicant was at a disadvantage, given he was unrepresented before it and was apparently unable to “clearly express circumstances that could constitute compelling reasons”.[5]

   [5]  See casebook at page 197 [26

6. Ms Gbojueh did not attend the hearing and provided no reason for her non-attendance.  In addition, attempts by the Tribunal to reach her by telephone, during the hearing were unsuccessful.  In these circumstances, the Tribunal reached the conclusion that there was no evidence to indicate that the relationship between Mr Singh and Ms Gbojueh was ongoing.

7. The Tribunal then went on to consider the evidence provided by the applicant in respect of the relationship between him and Ms Gbojueh.  This included the following:

   ·A joint bank account of Mr Singh and Ms Gbojueh dated March 2014;

   ·A Residential Tenancy agreement from July 2014; and

   ·Statutory declarations from friends.

8. Given the absence of Ms Gbojueh and the fact that the documents outlined above were not current, the Tribunal requested the applicant to provide some further documentary evidence to substantiate the ongoing nature of his relationship with Ms Gbojueh, particularly either a current joint lease or some evidence from Centrelink, regarding benefits claimed by the applicant and/or Mr Gbojueh.  The applicant was not able to provide this evidence. 

9. At the time of the first Tribunal hearing (May 2015) Ms Gbojueh did provide evidence to the Tribunal.  This included that she was pregnant and the applicant was the father of her expected child.  As a consequence of this evidence, the Tribunal in the current matter, requested evidence of the applicant’s parentage of the child in question, either by way of a birth certificate or DNA testing.  This was not provided, either at the hearing itself or afterwards. 

10. Later, the applicant indicated that he had been told, presumably by Ms Gbojueh, that he was not the father of the child.  The Tribunal also doubted the veracity of the applicant’s evidence in respect of the closeness of his relationship with other of Ms Gbojueh’s children.  In addition, in the absence of current evidence from Ms Gbojueh herself, the Tribunal doubted the applicant’s evidence that she was dependent upon his financial or any other kind of assistance. 

11. Finally, the Tribunal considered the applicant’s assertion that he would be bereft of familial support, if returned to India.  In this context, the Tribunal noted that the applicant was in his late twenties and had some English language skills and qualifications.  In all the circumstances, the Tribunal found that there were no compelling reasons for not applying the schedule 3 criteria to the applicant’s circumstances.

The current application

1. The applicant has appeared on his own behalf in the current proceedings.  In addition, he drafted the application for review.  The grounds of the application can be summarised as follows:

   ·The applicant is not satisfied with the decision;

   ·He and Ms Gbojueh have been married for nearly three years and their relationship is sound;

   ·On the day of the hearing, Ms Gbojueh was at work and was unable to attend;

   ·He wishes to be able to support Ms Gbojueh financially;

   ·He provided the Tribunal with all the documents available to him at the time;

   ·He refutes the assertion that he was unable to provide information in respect of Ms Gbojueh’s other children, having indicated to the Tribunal that her oldest child would be sixteen in December.

2. In this context, it is to be noted that the applicant has not delineated any specific grounds which identify jurisdictional error.  Rather, he has asserted his dissatisfaction with the decision in question and asserted that it is both incorrect and unfair to him. 

3. The applicant had the assistance of an interpreter on the hearing of his application before this court.  I endeavoured to explain to him what was the nature of a jurisdictional error and asked him to indicate how the Tribunal had failed to discharge its jurisdictional obligations towards the applicant.  Mr Singh did not point to any specific or particular error.  Rather, in general terms, he asserted that he was dissatisfied with the decision.

The legal principles applicable

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Administrative Appeals Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Administrative Appeals Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[6] 

   [6]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[7]

   [7]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[8]

   [8]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

11. In Minister for Immigration & Citizenship v Li[9] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.  As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.

    [9]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

Discussion

1. There is nothing, in my view, arising from a fair reading of the AAT’s decision, to indicate that it has failed to consider material advanced, either directly or impliedly by the applicant.  The two questions on which the proper exercise of the Tribunal’s jurisdiction rested can be summarised as follows:

   ·Did the applicant hold a substantive visa at the time of application;

   ·If not, did compelling reasons exist to waive this requirement.

2. An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[10]

   “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

   [10]  See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

3. In my view, the Tribunal properly construed the questions requiring its determination and therefore properly acquitted the jurisdiction conferred upon it.  It was incontrovertible that the applicant did not hold a substantive visa, when he made the application for the relevant visa.  Thereafter, the Tribunal considered whether compelling reasons existed, which justified the waiver of this pre-condition.

4. In my view, the evidence indicates that the Tribunal undertook a proper consideration of whether compelling reasons existed to justify the waiver of the relevant regulatory criteria required to be satisfied before the partners visa in question could be granted to Mr Singh.  In this context, the Tribunal considered the evidence available to it regarding the nature of Mr Singh’s relationship with Ms Gbojueh. 

5. In particular, the Tribunal attempted to contact Ms Gbojueh and gave Mr Singh an opportunity to clarify the situation vis-à-vis his relationship with her recently born child.  In addition, Mr Singh was given an opportunity to provide contemporary documentary evidence to support his assertion that he and Ms Gbojueh remained in a committed relationship. 

6. In my assessment, the Tribunal conducted the proceedings in a procedurally fair way.  Mr Singh was properly informed of what the relevant issues were and it was indicated to him, by the Tribunal, what types of evidence were germane to the decision in question.  In the absence of this evidence, it was open to the Tribunal to conclude, as it did, that no compelling reasons existed to justify waiver of the condition requiring the holding of a substantive visa.

7. In my view, it was open to the Tribunal to conclude that there was a significant level of uncertainty about the nature of this relationship and that therefore there were not reasons of such moment that the discretion available to the Tribunal should be exercised in Mr Singh’s favour.  I am not entitled, on judicial review, to exercise this discretion, which falls within the sole jurisdiction of the Tribunal.

1. In my assessment, Mr Singh’s assertion that the Tribunal has in some way misconstrued his evidence is an attempt to obtain a merits review of his application rather than the identification of some form of jurisdictional error.  In particular, I do not think that the decision can be categorised as a legally unreasonable one in the sense identified by the High Court in Li.  It has a rational and intelligible basis.

2. In all these circumstances, I have reached the conclusion that there is no discernible legal error arising in the decision of the Tribunal under review.  Accordingly, the application must be dismissed. 

3. The Minister seeks costs in an amount of $5,500.00, which is slightly less than the amount calculated according to the court’s schedule.  I will make an order for costs in this sum.

4. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       6 April 2018