Singh v Minister for Immigration

[2018] FCCA 776

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 776

Catchwords:
MIGRATION – Application for partner visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by relying on non-probative evidence – whether the Tribunal failed to apply the correct test – whether the Tribunal’s decision was affected by a reasonable apprehension of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), cl.801.221 of sch.2, reg.1.15A

Cases cited:

DAO16 v the Minister for Immigration & Border Protection [2018] FCAFC 2

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister of Immigration & Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5

Applicant: GURDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3672 of 2016

Judgment of: Judge Smith

Hearing date: 14 March 2018

Date of Last Submission: 14 March 2018

Delivered at: Sydney

Delivered on: 14 March 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones, Parish Patience Immigration Lawyers

Counsel for the First Respondent: Mr P Knowles

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant has leave to file within 7 days a further amended application to include ground 4 being that the Tribunal fell into jurisdictional error because it rejected corroborative evidence without a rational and logical basis.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3672 of 2016

GURDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 November 2016.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Residence) (Class BS) subclass 801 visa.  The criteria for the grant of that visa included sub-cl.801.221(2)(c) of the Migration Regulations 1994 (Cth) that required the applicant to be the spouse or de facto partner of the sponsoring partner. The applicant’s sponsoring partner in this case was his wife, an Australian citizen.

2. The definition of “spouse” is found in s.5F of the Migration Act 1958 (Cth), and includes if “the 2 persons are in a married relationship”.Section 5F(2) provides that:

   (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.

3. Regulation 1.15A of the Regulations prescribes certain considerations to be taken into account, in accordance with s.5F(3).

4. The real issue for the Tribunal was whether the applicant and his sponsor, his wife, had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and their relationship was genuine and continuing. 

Background

1. The applicant applied for two visas on 15 March 2012.  Those two visas were a Partner (Temporary) (Class UK) subclass 820 visa, and the subclass 801 visa.  Those two visas work in tandem so that if, as in this case, an applicant is granted the first visa, then the second visa is considered after a period of at least two years.

2. In this case, the applicant was granted the subclass 820 visa on 15 November 2013.  Sometime after that, consideration of the remaining subclass 801 visa application was given by the Department.  As part of that consideration, there was a site visit undertaken to the applicant’s parents’ home village on 15 April 2015.  What occurred at that site visit was recorded in a report dated 21 April 2015, which I set out below:

   Interview with third parties:

   We reached the village of the applicant’s residence and enquired about the residence of the village head. When we reached the residence of the village head, Mr Kabul Singh, we introduced ourselves and received the following information:

   •The village knows the family of the applicant and has heard of the applicant.

   •Claims to never have heard of the marriage of the applicant, in India or overseas.

   •As per his knowledge, PA has never returned to India once he left for overseas.

   We reached the residence of the applicant after enquiring about his address, and upon reaching we met the brother of the applicant – Kuldeep Singh, sister in law and mother of the applicant – Pritam Kaur. We introduced ourselves and informed them the purpose of the call. We received the following information from the family of PA:

   •Family composition – mother, father (deceased), brother – Kuldeep Singh, sister in law and one more brother.

   •PA left for striding in Australia in 2008 and never returned since.

   •PA calls once a month to speak to his family members and lives alone in Melbourne.

   •Family has no knowledge of what PA does at present, working or studying.

   •Family states PA has never been married, in India or Australia.

   •PA’s marriage plans are not known to his family members.

   •PA’s family is confident that if PA gets married he will inform them.

   We thanked the family for the information received and before leaving, requested permission to take a photograph of the family. PA’s brother said we could take a photograph of PA’s mother; we left the premises after taking a photograph of PA’s mother.

   Before leaving the premises, we confirmed with the family if they understood everything we asked them and told them. The family confirmed that they were able to comprehend everything we asked and told them.

   Findings

   On the basis of the information received from the village head and the family members of the applicant, it is evident that they have no information about the marriage of the applicant. It would seem evident that the applicant has not disclosed his intention/marital status to his family.

   Outcome: Non-Genuine

   (Emphasis in original)

3. The gist of the report was given to the applicant for comment by an officer of the Department, and the applicant made a substantial reply to it.  On 7 October 2015, a delegate of the Minister made a decision to refuse to grant the applicant the subclass 801 visa, and the applicant applied to the Tribunal for review of that decision.  Once again, the applicant was given details or particulars of the site visit report for comment by the Tribunal, and was also invited to attend a hearing to be conducted by it on 10 November 2016. The applicant attended and gave evidence at that hearing, as did the sponsor and a number of other witnesses.

Tribunal’s decision

1. On 23 November 2016, the Tribunal made its decision to affirm the delegate’s decision. The Tribunal accepted, at [7] of its reasons, that the parties were married to each other, in a valid marriage, for the purposes of s.5F of the Act, and then went on to consider whether the other requirements for the spousal relationship within the meaning of the term in the Act were met. It noted at first, in [8], its concern about the timing of the relationship, having regard to the timing of the expiry of the applicant’s student visa, and the marriage and the application for a spouse visa.

2. The Tribunal noted the explanations for this, but found those explanations unpersuasive.  It also formed a view, at [10], that the parties had been less than truthful in their evidence concerning the development of the relationship, because there were significant inconsistencies in their oral evidence to the Tribunal.  The Tribunal then went on to consider the evidence and circumstances before it, by reference to the matters set out in reg.1.15A of the Regulations.

3. The Tribunal started with the social aspects of the relationship ([12]), and accepted from the statements of relatives and friends, the expression of belief that the relationship between the applicant and the sponsor was genuine.  It also accepted that Centrelink had been informed about that relationship.  At [13], the Tribunal expressed significant concerns about the recognition of the relationship by the applicant’s family, and in this respect it relied upon the report of the site visit undertaken at the applicant’s village and home in India.

4. The Tribunal referred to the evidence given by the applicant given in response to that site report, but found that the claims were “utterly unpersuasive” ([19]).  It gave a number of reasons for its conclusions in that respect, including its indication that it had taken into account the oral evidence from the applicant’s mother and siblings.  The Tribunal then turned, at [34], to the financial aspects of the relationship, and found, at [35], that there were a number of inconsistencies in the parties’ oral evidence to the Tribunal concerning their financial arrangements.

5. The Tribunal formed the view, at [36], that the parties did not meaningfully discuss their financial affairs, and although it accepted there was some degree of sharing of financial resources, the evidence indicated that their finances were largely kept separate, and that there was no evidence of joint ownership of assets and joint liabilities, and little evidence of any legal obligations owed to the other party.

6. The Tribunal then moved, at [37], to consider the nature of the household.  It accepted, on the basis of documentary evidence such as rental agreements and correspondence and other materials that the applicant and his sponsor lived together.  It noted that that was consistent with evidence from their friends and the sponsor’s father.  It then turned to the nature of the parties’ commitment to each other, and at [39], formed the view that they did not have an adequate knowledge of each other.  It then set out in some detail, at [39.a]-[39.g], its concerns, based on the oral evidence to the Tribunal.

7. The Tribunal also addressed the submission that the inconsistencies in the evidence may have been caused by the sponsor’s medical condition, but did not accept that.  At [42], the Tribunal expressed its view that the discrepancies that it had summarised at [39] showed that the parties did not have adequate information about each other, and suggests that even though they may live together at the same property, they have not established a joint household, because they do not appear to have adequate knowledge or interest in each other’s affairs.  In that paragraph, it also acknowledged that the parties did provide consistent information about aspects of their lives and knowledge about each other, but that was not sufficient to overcome the Tribunal’s concerns.

8. The Tribunal then considered the evidence that the applicant and sponsor had tried to have a baby, and that the sponsor had had two miscarriages.  It stated that it generally considered that having a child to a relationship offers a strong indication that the relationship was a genuine and committed one; however, it did not consider that was the case in the present application.  Referring back to various reasons set out in the decision, the Tribunal said that it had formed the view that the applicant entered into the relationship for the sole reason of obtaining residence, and that he has no commitment to the relationship.  It stated that it was not satisfied that the applicant was committed to this relationship, and the attempts by the couple to have a child did not overcome those concerns.

9. Paragraph 46 of the Tribunal’s reasons shows a summary of what the Tribunal had considered up to that point in its reasons and I set that out below:

   The Tribunal has considered all the circumstances of this relationship. The Tribunal has formed the view that the parties had not been entirely truthful in their evidence to the Tribunal. The Tribunal is also of the view that the applicant has not been truthful in his explanations concerning the site visit. The Tribunal accepts that others are aware of the relationship and believe it to be a genuine one. The Tribunal accepts that the parties had socialised together and represent themselves to others as being in a genuine relationship. The Tribunal acknowledges the sponsor's pregnancies. The Tribunal accepts that the parties live at the same address and do some household chores together and that there is a degree of financial support provided to each other. Against these considerations, the Tribunal has formed the view that the applicant is not a person of credibility and that he is being deliberately untruthful in relation to the circumstances of the site visit. The Tribunal has formed the view that the applicant is using the present relationship solely as a means of obtaining the Australian residence. The Tribunal has formed the view that before the expiry of his Student visa, the applicant decided to seek another option of remaining in Australia and formed this relationship for that purpose only. Although that does not necessarily preclude the existence of a spousal relationship, in the circumstances of this case, the Tribunal is not satisfied that the applicant views the relationship as a long term one or that he has any commitment to this relationship. The Tribunal places significant weight on the fact that the applicant did not inform his family about the relationship at the time of the site visit and made very little effort, if any, to introduce and maintain any relationship between his family in India and the sponsor. The applicant's conduct supports the Tribunal's view that he does not view this relationship as a long term one and lacks commitment to it. The Tribunal is not satisfied that the parties rely on each other for comfort and emotional support.

10. The Tribunal concluded that, in spite of the substantial amount of documentary evidence, the Tribunal was not satisfied the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of others, and was not satisfied their relationship was genuine and continuing, and that, at the time of the decision, the parties were in a spousal relationship. 

11. For that reason, it concluded the applicant did not satisfy the criterion in sub-cl.801.221(2)(c), and as it did not meet the alternative criteria, he did not satisfy the criteria for the grant of a visa, and so the Tribunal affirmed the decision under review.

Consideration

1. The applicant, in a further amended application, has four grounds of review. 

Ground 1

1. The first ground is that the Tribunal relied on evidence that was of no probative value.  This ground is explained by the applicant in his written submissions at [7]-[15], which I set out below: 

   7.The Tribunal placed “significant weight” on its finding that the Applicant had not informed his family in India of his marriage (para 46, CB 704). This finding was based on the report of a “site visit” conducted by Australian Embassy officials to the Applicant’s family village (CB 293-295). The site visit had been raised with the Applicant by the delegate (CB 300-303) and the Applicant had responded with statements from himself and others (CB 319-327). The Tribunal raised it again at the hearing (T28.19-33.4).

   8.The Applicant claimed that the Australian officials spoke only Hindi and English, whereas his family and the other villagers spoke Punjabi and had difficulty understanding what was being said. The site visit report confirms that the language used was Hindi.

   9.The Applicant’s response to the report was to first point out an obvious inaccuracy. The report said his mother and brother claimed he was living in Melbourne. His mother and brother both denied saying that and he pointed out that he had never been to Melbourne (paras 9-11, CB 319-320).

   10.He then stated that his mother was worried about his safety because she could not identify the officers properly (para 21, CB 321). This was also the first point he raised when questioned by the Tribunal about the visit (T28.23-31). When he tried to raise it again, the Tribunal said it was “not interested” (CB 31.32-37).

   11.Perhaps most significantly, the Applicant stated that his mother spoke Punjabi, not Hindi, and besides was not an educated person, and had thought she was being asked whether he had been married in India (para 22-23, CB 321).

   12.The Tribunal made no reference in its decision to the Applicant’s claim that his mother was deeply concerned at receiving a visit from a “white lady” given the recent news of violence against Indian students in Australia. It found his explanations in general to be "utterly unpersuasive" (para 19, CB 696). Its reasons for preferring the report of the site visit were put to the Applicant at the hearing (T29.29-31.37). In summary:

   •the immigration officers were experienced and professional and would have properly introduced themselves and not continued if they thought people were not understanding them;

   •nobody claimed they did not understand and went on with the interview;

   •if they had had any doubts about the identity of the people they could have refused to be interviewed;

   •the family did not write to the Department after the interview to say that they had not understood and what they said was wrong.

   13.The site visit report is a very brief summary of what is said to have taken place. Significantly, no attempt appears to have been made either by the delegate or the Tribunal to refer the Applicant’s replies to the Embassy for comment. The Tribunal does not profess any first-hand knowledge of site visit procedures or of the officers concerned. It did however have evidence, on the report itself, of the crucial fact that the language used by the officers was Hindi and it did not question the claim that the people being interviewed spoke a different language.

   14.The Tribunal also did not address in any way the culturally-specific explanations given by the Applicant regarding how the family would have reacted to the situation of foreign government officials turning up in their village to ask questions about their relative living in another country. On the contrary, the Tribunal’s remark that they had not written to the Department afterwards displays considerable ignorance of the issues involved.

   15.The Tribunal’s conclusion that the Applicant had not told his family about the marriage was based entirely on the site visit report. The site report cannot be considered probative evidence on which a reasonable decision maker could come to that conclusion: ARG15 at [83] and [96].

   (Emphasis in original and citations omitted)

2. The difficulty with this ground is that the site visit report, which appears at pages 293 to 295 of exhibit A, on its face plainly supported the Tribunal’s conclusion about the applicant’s contact with his family.  What the ground, in effect, asserts is that the Tribunal could not have relied upon that because there was a lot of other evidence which was inconsistent with it.  However, that does not establish any error. 

3. Whether or not the Tribunal accepted evidence which went one way in the face of evidence which went another was a matter for it, particularly because, as I have said, on its face, the report supported the conclusion reached by the Tribunal.  In effect, this ground was an attempt to bring the Court into a dispute about the weight of material and, therefore, into the merits of the Tribunal decision.  For that reason, it does not give rise to jurisdictional error and the first ground must be rejected.

Ground 2

1. The second ground is that the Tribunal applied a wrong test to the statutory requirement that the applicant and his sponsor have a genuine commitment to a shared life as husband and wife.  In effect, what the applicant is saying in this ground is that the Tribunal wrongly focused upon a past event, rather than focusing on the correct circumstances, namely, the current state of the relationship between the applicant and his wife. 

2. It is true that the Tribunal did have regard to the motivation that the applicant had in entering into the relationship in the first place.  However, it noted at [46] of its reasons, that such a motivation did not necessarily preclude the existence of a spousal relationship.  Further, it went on at [46] and [47], as it had throughout its reasons, to focus on the current circumstances in the relationship.  The mere fact that it had regard to something that occurred in the past does not mean that it solely focused upon the state of affairs at that time. 

3. Although the applicant relied upon the decision of the Full Court in Minister of Immigration & Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5, that decision is in fact inconsistent with the applicant’s argument. At [64.2], the Full Court said that:

   … the determination of whether or not a decision-maker is satisfied that there is a genuine de facto relationship is one which must be made as at the time of the decision and not by reference to some earlier point in time, such as when the parties embarked upon their relationship. In our view, as long as the relevant time is firmly kept in mind, we see no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship. …

4. That is precisely what the Tribunal did in this case.  As I have said, and have sought to explain in the above summary of the Tribunal’s reasons, the Tribunal clearly kept focussed upon the current state of affairs, having regard to what was occurring now in the relationship, but it also had regard to the way in which and the reason for which the applicant had entered into the relationship with his sponsor in the first place.  There was no error in that approach and it certainly does not disclose a misunderstanding of or misapplication of the criterion in sub-cl.801.221(2)(c) of sch.2 to the Regulations.  For that reason, the second ground is rejected.

Ground 3

1. The third ground and the fourth ground both rely upon the same particular, namely, that the Tribunal rejected a large amount of corroborative evidence without any rational or logical basis.  The first way in which this is said to have given rise to jurisdictional error is that it gave rise to a reasonable apprehension of bias.  Reasonable apprehension of bias is determined by asking whether or not a fair minded lay observer might reasonably apprehend that a decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that that decision maker is required to decide.  In circumstances of the Tribunal, the nature of the decision making body is also to be borne in mind and that distinguishes it from cases that deal with reasonable apprehension in the judicial sphere.

2. Nevertheless, it has been said in the judicial sphere, and applied regularly in cases concerning the Tribunal, that an allegation of apprehended bias does not direct attention to or permit consideration of whether the Judge or Tribunal had, in fact, pre-judged an issue.  To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence for reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry by first assuming the existence of a reasonable apprehension: see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, Gummow ACJ, Hayne, Crennan and Bell JJ at [67].

3. It is to be borne in mind that the reasons for the decision of the Tribunal are prepared necessarily at a time when the Tribunal has made up its mind.  Thus, it is misleading, if not simply misguided, to reason backwards from the fact that the Tribunal has made up its mind to the apprehension that it might not have made up its mind.  For those reasons, because nothing other than the reasons of the Tribunal were relied upon in support of this ground, this ground must be rejected.

4. I would add, however, that the fundamental premise of the ground is also misguided.  It is simply not the case that the Tribunal here simply rejected all of the corroborative evidence.  What it did was to have regard to and make findings of fact based upon the corroborative evidence, and then to engage in an evaluative exercise as to whether the facts it found, in fact, satisfied it that there was a genuine relationship between the applicant and his sponsor.

5. In making its findings of fact, the Tribunal largely accepted the corroborative evidence put forward by the applicant in support of his application for review.  It accepted, for instance, in light of all of the documentary evidence that the applicant and his wife lived together.  It accepted that they had certain joint aspects of their financial relationship.  It accepted that their friends and family had a genuine belief about their relationship.  It accepted that they were married. 

6. What the Tribunal did not accept were other matters, including the precise nature of their financial relationship, the precise nature of the household and it did not accept those for the reasons that it gave concerning the inconsistencies, amongst other things, between the parties’ oral evidence to the Tribunal.  For those reasons, I am not satisfied that there is any basis either in the factual premise or in the principle supporting the third ground.

Ground 4

1. The fourth ground, relying again on the same particular, is that the Tribunal’s decision was affected by irrationality or it was legally unreasonable.  I have already dealt with the factual premise of the argument, and that, in effect, also deals with the argument on the fourth ground.  The applicant argued that the rejection by the Tribunal of certain material was egregious in the circumstances, such as its consideration of the two miscarriages by the applicant’s wife. 

2. The use of the word “egregious” supports the inference that the applicant strongly disagrees with the way in which the Tribunal dealt with that claim, but it does nothing to add to the possibility that there was no rational basis for it.  The Tribunal, as I have already noted, had regard to, and indeed accepted, the fact that the applicant and his wife had attempted to have children ([43]).  Therefore, it was not a question, as in the case relied upon by the applicant, DAO16 v the Minister for Immigration & Border Protection [2018] FCAFC 2, of the Tribunal simply rejecting evidence and not giving any rational basis for it.

3. The Tribunal accepted the fact of the miscarriages.  What it did not accept is that that fact alone, in all of the circumstances of the case or in combination with the other matters it accepted meant that the relationship was genuine.  It gave its reasons for that and those reasons were soundly based, in my view, on the matters that I have already outlined above.

Conclusion

1. For those reasons, I am not satisfied that there was any illogicality or irrationality that affected the Tribunal’s decisions.  The applicant has not established that there was any jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       4 April 2018