SINGH v Minister for Immigration

[2018] FCCA 520

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 520

Catchwords:
CITIZENSHIP AND MIGRATION – Migration.

Legislation:

Migration Regulations 1994 (Cth) cl.820.211(2)(ii)

Cases cited:

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

Applicant: GURUSHARANJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 173 of 2017

Judgment of: Judge Jarrett

Hearing date: 2 March 2018

Date of Last Submission: 2 March 2018

Delivered at: Brisbane

Delivered on: 2 March 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent
entered a submitting appearance

ORDERS

1. The application filed on 24 February 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 173 of 2017

GURUSHARANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal given on 25 January, 2017 which affirmed a decision of a delegate of the first respondent not to grant him a Partner (Temporary) (Class UK) visa.

2. The applicant contends that the Tribunal’s decision ought to be set aside, but his application for review to this Court does not identify any particular grounds upon which he says the Tribunal’s decision is affected by jurisdictional error.  Moreover, he has not filed any written submissions in accordance with the directions of this Court, which would assist the Court to identify his case that the Tribunal’s decision is affected by jurisdictional error.

3. The first respondent contends that the application fails to establish any jurisdictional error and must be dismissed.  The second respondent enters a submitting appearance.

4. The applicant is a citizen of India who arrived in Australia on 29 June, 2009.  He had a student visa at that time.  After being granted two subsequent student visas onshore, the applicant’s third student visa ceased on 2 July, 2014. 

5. He held no valid visa that permitted him to remain in Australia until 12 January, 2016 when he made an application to the department for a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa.

6. His application was made on the basis that he was sponsored by his wife, Nileshni Aitken, whom he married on 11 December, 2014.

7. On 21 January, 2016 the applicant was advised by the first respondent’s department that he did not meet Schedule 3 criterion 3001.  That required him to be the holder of a substantive visa at the time of his partner visa application on 12 January, 2016 or for that visa application to have been made within 28 days of the last time he held a substantive visa.  His last substantive visa had ceased on 2 July, 2014.  The applicant was invited to comment on whether there were compelling reasons for not applying the Schedule 3 criteria to him.

8. In response to the invitation to comment, on 18 February, 2016 the applicant provided a statement addressing the Schedule 3 criteria.  The applicant said that he was the primary caregiver to the sponsor’s two children.  His relationship with the children was “really good” and he did “all the things to take care of them” including school pick up and drop off, meal preparation, homework help, disciplining, consoling and helping.  He said that he had substantial ties to Australia and its citizens and was in a loving relationship with his wife.  With two children and debt to repay, their family was not particularly well off and they relied upon his wife’s income.  The family did not receive financial support from the children’s father.  If the applicant had to depart Australia, he claimed that the sponsor would not be able to continue her hours at work because she would need to look after her children and they probably would not make ends meet.  The applicant said that he regretted being in Australia unlawfully but he “let it go on so long” because he was scared of being sent to detention.

9. On 20 May, 2016 a delegate of the first respondent refused to grant the applicant the visa for which he applied on the basis that he did not satisfy Schedule 3 criterion 3001, 3003 and 3004 and there were no compelling reasons to justify waiving those criteria. The delegate found that the applicant did not meet cl.820.211(2)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth).

10. On 7 June, 2016 the applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal could not decide the review in the applicant’s favour on the material before it alone and so on 23 December, 2016, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments. 

11. The applicant and sponsor appeared at a hearing convened on 23 January, 2017.  The applicant submitted additional evidence in support of the application at the hearing, including a statement by his sponsor, medical evidence in relation to his sponsor and an affidavit by his father.  The applicant also submitted a statutory declaration in which he declared that his father had disowned him because he did not complete his studies and he had received threatening phone calls from his brothers. 

12. On 25 January, 2017 the Tribunal affirmed the delegate’s decision.  It found that the applicant’s last student visa had ceased on 2 July, 2014 and he made the application for the visa on 12 January, 2016.  As the applicant had not applied for the visa within 28 days after the date on which he last held a substantive visa, the Tribunal found that he did not satisfy criterion 3001.  The Tribunal then proceeded to consider whether there were compelling reasons for not applying the Schedule 3 criteria.

13. The Tribunal instructed itself as to the law and had regard to Waensila v Minister for Immigration and Border Protection & Anor [2016] FCAFC 32 and observed that ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.

14. The Tribunal carefully, in my view, considered the applicant’s claims that there were compelling reasons for not applying the Schedule 3 criteria.  In that respect, it did not accept that fearing detention or having to save money for a wedding or visa application were compelling reasons for not applying the Schedule 3 criteria.  The Tribunal considered that it was the applicant’s responsibility to remain “lawful” and that it was no answer to him remaining in Australia without a visa to say that he was unable to afford visa fees or student fees.  The Tribunal found that the applicant was well aware of the requirement and the need to pay fees and to obtain enrolment certificates and lodge visa applications prior to the expiry of the visa of his last substantive visa. 

15. Further, the Tribunal did not accept that planning for a marriage meant that the applicant could not also make arrangements to apply for a visa or otherwise ensure he remained in Australia lawfully. 

16. The Tribunal accepted that the applicant and sponsor married in December, 2014 and that they were emotionally dependant on one another.  However, the Tribunal considered that there was nothing unusual in their particular circumstances such as to give rise to a compelling reason for relevant purposes.  Further, the Tribunal was not satisfied that the length or nature of their relationship or marriage constituted a compelling reason. 

17. Whilst the Tribunal accepted that:

    a)the applicant helped to look after his sponsor’s children and had a relationship with them; and

    b)his sponsor and her ex-husband would have to juggle care arrangements if the applicant returned to India and the children would be affected

    it did not accept that such a change to arrangements or the applicant’s absence were compelling reasons for relevant purposes. 

18. The Tribunal accepted that whilst his sponsor and her children would prefer to have the applicant around to provide care and companionship, it did not accept that his temporary absence should he return to India amounted to a compelling reason for relevant purposes.  The Tribunal considered that it was not uncommon for couples applying for a partner visa to face temporary separation during the visa process. 

19. The Tribunal did not accept that the applicant’s sponsor’s financial circumstances amounted to a compelling reason for relevant purposes.  The Tribunal noted that movement records indicated that the sponsor had taken five overseas trips between February, 2014 and August, 2016, and it was evident that she had income from casual employment, Centrelink, settlement money, assistance from her ex-partner and her family and a half share in a home. 

20. The Tribunal accepted that the applicant’s sponsor had some medical conditions but it did not accept that her conditions were severe as she was able to work three days per week in child care and the conditions had not curtailed her overseas travel.  The Tribunal did not consider that the applicant’s sponsor’s medical conditions amounted to compelling reasons for relevant purposes.

21. Moreover, the Tribunal did not accept the applicant as a witness of truth.  The Tribunal did not accept that the applicant’s family had disowned him or that he had been threatened by his brother as he had claimed and it expressly found that the applicant was not telling the truth.  The Tribunal explained that it did not consider the applicant credible for the reasons set out in its reasons for decision.  The Tribunal transparently, in my view, explained its creditability findings. 

22. Ultimately, the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria and it found that the applicant did not meet cl.820.211(2) or Schedule 2 of the Regulations as the delegate had found. The decision under review was affirmed.

23. The applicant has applied to this court for judicial review of the Tribunal’s decision.  His application for review does not set out any proper grounds of review.  Indeed, his application for review seems to consist of a number of discursive statements, which mirror the arguments he put to the Tribunal when the Tribunal was considering the review application before it.

24. The submissions made by the applicant to me today emphasise that his complaint with the Tribunal’s decision is he simply does not agree with it.  His arguments demonstrated that he did not accept the Tribunal’s findings about the various matter that he had raised as important to establish the relevant compelling circumstances. 

25. The difficulty for the applicant, however, is that the Tribunal indeed considered each of the matters that he raised.  The Tribunal’s reasons make that clear.  It was for the Tribunal to determine whether those matters amounted to compelling reasons for relevant purposes and it determined that matter against the applicant.

26. I have considered the Tribunal’s reasons for my own purposes as I am required to do.  It is apparent from an examination of the Tribunal’s reasons that the Tribunal has undertaken the task that it is required to undertake and that the Tribunal has applied the correct law and that it has not misdirected itself in respect of any aspect of the matter.  The findings of the Tribunal are, in my view, unassailable. 

27. The decision of the Tribunal is not affected by jurisdictional error and the application must be dismissed.

28. Ordinarily costs follow the event in applications such as this.  The rule is that the party that is successful has his or her costs paid by the party that is unsuccessful unless there are special circumstances that might suggest that the application of that usual rule is inappropriate.  Here, the applicant says that he does not have the financial capacity to meet any costs orders and his sponsor has already expended considerable sums in pursuing his visa application process. 

29. In my view neither of those matters amount to special circumstances.  Impecuniosity generally is never an answer to an order for cost.  It is appropriate to apply the usual rule.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 March, 2018.

Date: 2 March 2018