SINGH v Minister for Immigration

[2018] FCCA 518

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 518

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether applicant failed to fulfil statutory criterion for the subclass of visa sought – Tribunal’s decision to proceed in absence of applicant – decision to proceed not unreasonable – grounds of application failed to engage with terms of the statute – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 4, 5, 13, 14, 29, 30, 31, 40, 45, 65, 362B, 498

Migration Regulations1994 (Cth), rr 2.01, 2.02, Sch 2 cl 820.22, 820.221, 1124B, 1214C

Cases cited:

AZAFBv Minister for Immigration and Border Protection [2015] FCA 1383

Kaur v Minister for Immigration and Border Protection [2014] 141 ALD 619

Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33

SZOPV vMinister for Immigration and Border Protection [2016] FCA 514

Applicant: MANJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2784 of 2015

Judgment of: Judge A Kelly

Hearing date: 14 March 2017

Date of Last Submission: 14 March 2017

Delivered at: Melbourne

Delivered on: 8 March 2018

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Brown

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed 16 December 2015 be dismissed. 

2. The Applicant pay the First Respondent’s costs fixed at $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2784 OF 2015

MANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATAIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks an order quashing a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 December 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister) made on  24 April 2015 not to grant the applicant a partner (residence) (class BS) visa.

Background

1. The applicant, an Indian national, is presently aged 33 years.

2. In September 2007, he arrived in Australia.

3. On 3 September 2012, the applicant lodged an application seeking the following visas: a class UK (Partner – Temporary) (subclass 820) and Partner – Residence (subclass 801).  The application disclosed that the applicant had previously had a visa cancelled in February 2012.

4. On the same date, the applicant completed a declaration that he had appointed a migration agent.

5. On 29 November 2012, a Case Officer appointed by the Minister communicated with the applicant’s migration agent by email requesting that the applicant attend an interview.  On 20 December 2012, the migration agent responded to that email advising that his client was not able to attend the interview and that ‘I have not got any confirmation as of now.’  On 8 January 2013, the delegate replied stating, in part that:

   I note that your applicant declined to attend the interview scheduled.

   I am obliged to advise you of some adverse information the Department has received about your applicant's relationship. I am providing you 28 days to make any comment about the adverse information and the application, at which time a decision on the application will be made.

   The department has obtained information that indicates the applicant's sponsor Jane Zapanta Sullivan 11/04/1983 considers herself to be in a relationship with a man other than the applicant at the same time as the applicant's declared relationship, and declares herself to be married to a man other than the applicant at a date two weeks after the applicant indicates he married the sponsor.

6. The Case Officer allowed the applicant a period of 28 days to respond to the contention that the applicant’s sponsor was no longer in a relationship with the applicant and had married another man.  The applicant did not respond to that request.

7. On 7 March 2013, the delegate wrote to the applicant advising that his application for temporary and residence visas had been refused. The stated basis for the refusal was that the applicant did not satisfy regulation 820.221 of the Migration Regulations 1994 (Cth) (Regulations).  Attached to the letter was a decision record.

8. In the body of the decision the delegate relevantly stated:

   While I am satisfied that you and your sponsor are married, there is no evidence that you see the relationship as a long-term one, that you draw emotional support and companionship from each other or that you have a commitment to a shared life together.

9. The delegate’s decision record also noted that the applicant had failed to attend an interview and failed to respond to the adverse information as identified by the Case Officer above.

10. Subsequently, the Department identified that an error had been made in relation to the determination of the visa application.  The identified error was that the decision made on 7 March 2013 omitted to properly assess the application for a Partner – Residence visa.

11. By letter dated 24 April 2015, the delegate wrote to the applicant advising that a further decision had been made to refuse to grant him a Partner (Residence) (class BS) subclass 801 visa. Attached to the letter was a decision record in which the delegate found that the criteria prescribed by regulation 801.221 of the Regulations for the grant of a Partner (Residence) class BS (subclass 801) visa were not met. The reasons then stated a conclusion for the refusal to grant the Partner (Residence) class BS (subclass 801) visa as follows:

    As your partner (temporary) class UK (subclass 820) visa has been refused, you are not the holder of a subclass 820 visa. Therefore you do not meet the requirements of subclauses 801.221 (2), . . . (5) or (6).

12. The applicant applied to the Migration Review Tribunal for a review of the delegate’s decision made on 24 April 2015.  The applicant again appointed his migration agent as his representative.

13. On 13 May 2015, the Tribunal communicated with the applicant’s migration agent by email, providing him with a letter in which the Tribunal requested that if there were any changes to his contact details including address, mailing address or email address, these be provided immediately to the Tribunal.  No such changes were notified.

14. On 13 October 2015, the Tribunal communicated with the applicant’s migration agent by email inviting the applicant to attend a hearing on    4 December 2015 at which he might give evidence and present arguments relating to the issues in his case.  The letter stated in part:

    A key criterion for the Subclass 801 visa that you were refused is that you have been granted a Subclass 820 visa. You should provide evidence that you have been granted a Subclass 820 visa because the Tribunal will give particular consideration to that.

15. In addition, the letter advised the applicant that if he was unable to attend the hearing, he should advise the Tribunal of his unavailability as soon as possible.  The applicant neither responded to the invitation, nor requested a postponement of the hearing.  Nor did his agent.

16. A hearing was conducted on 4 December 2015.  The applicant did not attend.  The Tribunal called the applicant before proceeding with the hearing.  The Tribunal recognised its policy of sending a text message to applicants reminding them of the appointed hearing date.  The Tribunal proceeded to consider the application.

17. On 7 December 2015, the Tribunal affirmed the decision of the delegate not to grant the applicant a Partner (Residence) (class BS) visa. The Tribunal noted one of the criteria for the grant of a Partner (Residence) (class BS) visa was that the applicant had been granted a Partner (Temporary) (Class UK) visa.  The Tribunal further recognised that the delegate had found the applicant had not been granted a Partner (Temporary) (Class UK) visa and for that reason could not satisfy that criterion for a Partner (Residence) (class BS) visa.  

18. The Tribunal reasoned that the issue upon review was whether the applicant had been granted a Partner (Temporary) (Class UK) visa.  It noted that the applicant had applied for such visa on 25 September 2012 and that that application had been refused on 7 March 2013.  After noting the history of the delegate’s decisions respecting the visa application, the Tribunal stated, correctly, that:

    Clause 801.221 of the Regulations sets out criteria to be satisfied at the time of decision. Subclause (1) of cl.801.221 provides that an applicant must meet the requirements of sub-clause (2), (2A), (3), (4), (5), (6) or (8). Each of those subclauses includes the requirement that the applicant is the holder of or has held a subclass 820 visa.

19. The Tribunal noted further that, had the applicant appeared at the hearing, it would have offered him an opportunity to identify the basis on which he considered he was entitled to a subclass 801 visa.  It identified that the reason for offering that opportunity to the applicant was that on the evidence before it, the applicant did not hold a subclass 820 visa.  It also noted that the applicant had provided no information demonstrating that he in fact held or had held such a visa.

20. On this reasoning the Tribunal dismissed the application, concluding that it was not satisfied that the applicant satisfied the designated criteria for a Partner (Residence) (class BS) visa; namely, that the applicant did not hold a Partner (Temporary) (Class UK) visa.

Procedural History

1. On 16 December 2015, the applicant issued a proceeding in this court seeking prerogative relief in respect of the Tribunal’s decision.             The applicant also swore an affidavit in support, exhibiting a copy of the Tribunal’s decision made on 7 December 2015.

2. By its response filed on 22 December 2015, the Minister contended that the proceeding should be dismissed and that the applicant pay the Minister’s costs of the proceeding.

3. The response stated that the decision under review was not affected by jurisdictional error and sought dismissal of the application.

4. The application was listed for hearing on 25 May 2016.  On that date orders by consent were made vacating the hearing.  Further orders were made regulating the filing of any further amended application with proper particulars of the grounds relied upon, a supplementary court book, if any, and written submissions. The applicant did not comply with those orders.

5. The applicant did not file any amended application, supplementary court book or written submissions and so did not take the opportunity to advance his application for judicial review in any of those ways.

6. The Minister’s outline of submissions provided an analysis of the matter including the circumstances of the applicant, the decisions of the delegate and the decision of the Tribunal.

Grounds

1. The grounds of the application are as follows:

   1. I have applied to the department of information (sic) and border protection for a Subclass 801 (Partner) visa on 21 September 2012. delegate decided to refuse to grant the visa on the basis of cl.801.211(2) because they said I never held a subclass 820.

   2. I applied to the Tribunal for review of the delegates decision, and honourable Tribunal refused to grant visa, and informed that the decision of the delegate of the minister for Immigration and Border Protection remains in force in my application to have that decision changed has been unsuccessful.

   3. request honourable minister to please reconsider my following points.

   I have applied my partner visa, and I wasn't sure what was the difference of 820 visa and 801 visa. and my visa was refused on the ground that I didn't hold 820 visa. but as I had applied for visa I was under assumption that it was partner visa as I am not very good in visa and their subclass. when my visa  refused then I come to know that I have to apply for 820visa and not 801 visa. But by the time I understood this it was to let.

   4. I request to honourable minister to please reconsider my application and give me some time so that I can produce the documents and can submit the same at earliest.”

2. It is convenient to consider those matters as a whole.

Consideration

1. It may be assumed that the applicant was unfamiliar with court processes.  With those observations in mind, I have re-examined the Tribunal’s reasons.  The court has analysed and considered for itself the competing arguments in relation to this application. 

2. The applicant did not contend that the Tribunal’s decision to proceed in his absence was the subject of challenge.  The applicant stated during the course of the hearing before me that he had not attended before the Tribunal because ‘I was sick.’  There was no medical evidence adduced in support of this assertion and the circumstance that there was no such evidence is to be considered in light of the matters in paragraphs [16]-[17] and [26] above. 

3. It was open to the Tribunal to proceed in the exercise of its discretion to proceed to determine the application for review: sub-s 362B(1A).  In the present case, I consider that the decision to do so was exercised reasonably: cf Kaur v Minister for Immigration and Border Protection [2014] 141 ALD 619, 649 at [123]; SZOPV vMinister for Immigration and Border Protection [2016] FCA 514; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; AZAFBv Minister for Immigration and Border Protection [2015] FCA 1383.

4. The object of the Act as expressed in sub-s 4(1) is to regulate the coming into, and presence in, Australia of non-citizens (being those persons as defined by sub-s 5(1)). The Act is an exclusive source of the right of non-citizens to enter or remain in Australia: ss 4(2), 13-14. Subject to the Act, the Minister may grant a non-citizen permission – to be known as a visa – to travel to, enter, and remain in Australia and to do so for a prescribed, specified or indefinite period: ss 29-30.

5. Part 2 of the Act concerns the subjects, arrival, presence and departure of persons, and is arranged in 23 Divisions comprising ss 13 - 274. By s 65, the Minister is required (subject to exceptions that are not here relevant), to consider a valid protection visa application. Where a valid visa application has been made, the Minister is required to grant or refuse the visa application: paras 65(1)(a)-(b).

6. By paragraph 65(1)(b), the Minster is required to refuse to grant a visa application where the criteria for that visa are not satisfied. As stated above, one constraint imposed on the Minister in the consideration of a visa application is the requirement that the application may only be granted where the criteria for the particular visa applied for have been satisfied: ss 31(3), 65(1)(a)(ii).

7. There are prescribed classes of visas: sub-s 31(1). A non-citizen who wants a visa must apply for a visa of a specified class: sub-s 45(1).   

8. Sub-section 31(3) provides that the Regulations may prescribe criteria for the grant of a visa. Further, the Regulations may provide that a visa of a specified class may only be granted in specified circumstances: sub-s 40(1).

9. The prescribed classes of visas are those as itemised in Schedule 1 to the Regulations: reg’n 2.01. Part 1 of Schedule 1 concerns the subject, Permanent visas. Within Part 1, cl 1124B identifies the manner in which an application for a permanent Partner (Residence) (Class BS) visa may be made. Part 2 of Schedule 1 concerns the subject, Temporary visas. Within Part 2, cl 1214C identifies the manner in which an application for a Partner (Temporary) (Class UK) may be made.

10. Regulation 2.02 prescribes that there may be subclasses of visa being as set out in certain items in Schedule 2 to the Regulations. Within Schedule 2, subclass 801, are relevantly, the primary criteria as prescribed for a Partner visa. Clause 801.22 identifies the criteria for a Partner visa which are to be satisfied at the time of decision. Clause 801.221 prescribes that the applicant must meet the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8). Each sub-clause within cl 801.221 prescribes that the applicant must hold a Subclass 820 visa.

11. The Tribunal’s reasons accurately disclose the history of the matter including that the applicant had applied for a Partner (Temporary) (Class UK) visa which application had been refused.  The applicant did not seek a review of that decision by the Tribunal. 

12. In those circumstances, this criterion for the grant of a Partner (Residence) (class BS) visa could not be fulfilled. 

13. The power conferred by s 65 to grant or refuse a visa application must be exercised in accordance with any applicable regulations under the Act: s 498. The applicant in this case did not satisfy the requirement under cl 801.221 that he was the holder of a Subclass 820 visa. The applicant did not hold such visa either at the time of lodging his application, at the time of the decision of the delegate to refuse that application or when that decision was affirmed by the Tribunal.

14. It follows that the Minister’s delegate was required by para 65(1)(b) to refuse the visa application.

15. The applicant’s grounds of application fail to identify a basis on which any jurisdictional error is shown in the Tribunal’s decision and are, in my opinion, devoid of merit.

16. The application should be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 8 March 2018