Singh v Minister for Immigration
[2018] FCCA 369
•22 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 369 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Administrative Appeals Tribunal’s decision affirming decision of Delegate not to grant a (Subclass 820) Temporary Partner visa and (Subclass 801) Partner visa – application for both visas out of time as not complying with Condition 3001 – no “compelling reasons” for not applying Condition 3001 – No meaningful grounds of jurisdictional error asserted by applicant – otherwise no discernible jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 |
| Applicant: | MANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1454 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 March 2017 |
| Date reserved: | 30 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr T. Liu |
| Solicitors for the Respondents: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 8 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1454 of 2016
| MANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 28 years, having been born on 7 March 1989.
By Application filed in this Court on 8 June 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 May 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 12 December 2014 refusing to grant the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (Temporary Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on 21 July 2013 on a Visitor (Subclass 600) visa (Visitor visa), which ceased on 21 October 2013. This was the last substantive visa that was granted to the Applicant.
The Applicant applied for a Vocational Education and Training Sector (Subclass 572) visa on 18 October 2013. However this application was refused on 27 November 2013. The Migration Review Tribunal affirmed the decision to refuse this visa application on 26 February 2014. An application for review of that decision was made to the Federal Court of Australia but was withdrawn by the Applicant on 17 November 2014.
On 22 September 2014 the Applicant applied for the Temporary Partner visa together with a Partner (Residence) (Class BS) (Subclass 801) visa (Partner visa) on the basis of being in a spousal relationship with an Australian citizen, Ms Radhika Naidu, who was his sponsor (the sponsor) and whom he had married on 4 May 2014 in Australia.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of the Migration Regulations 1994 (Cth) (Regulations) is to prescribe that at time of decision the relevant applicant is already the holder of a Temporary Partner visa.
As noted in [3] above, the Applicant’s last substantive visa ceased on 21 October 2013. In the Applicant’s circumstances this meant that at time of application for the Temporary Partner visa he had to satisfy Condition 3001(1) of Sch.3 to the Regulations which relevantly required him to have made his application within 28 days of 21 October 2013. However, he had made his application almost a year after that date and so it was necessary for him to establish, to the satisfaction of the Minster, that there were “compelling reasons” for not applying Condition 3001(1): see .cl 820.211(2)(d)(ii).
Decision of Delegate
In her Decision Record the Delegate noted that the Applicant had been invited by a letter dated 28 October 2014 to submit any information regarding any compelling factors in favour of the Minister waiving Condition 3001. The Delegate noted that while the Applicant had provided 16 photographs which went to a genuine spousal relationship on 7 December 2014, he had not provided any “compelling reasons” for not applying Condition 3001.
In these circumstances the Delegate was not satisfied that there were compelling reasons for not applying Condition 3001 and therefore found that the Applicant had not satisfied cl.820.211(d)(ii). She refused the Applicant’s application for a Temporary Partner visa which meant that, as he was not the holder of a Temporary Partner visa, he did not meet the requirements for a Partner visa, which was also accordingly refused.
Decision of Tribunal
The Applicant applied to the Tribunal on 23 December 2014 for a merits review of the Delegate’s decision.
By letter dated 19 February 2016 the Tribunal invited the Applicant to provide information in writing showing that there were compelling reasons such that the Tribunal should allow him to lodge his Partner visa onshore. In the Applicant’s response by email dated 3 March 2016 the Applicant replied as follows:
The reason for applying visa onshore is I’m the only person to look after my wife here in Australia and she doesn’t want to go to India, because she believes she can’t adapt life in India as we have nothing there, with no family support apart from me and Radhika. I’m also working very hard to make ends meet so leaving Australia at this moment would be very hard for both of us. We will really appreciate that if tribunal allows us to lodge partner visa onshore.
The Applicant appeared at a hearing before the Tribunal on 8 April 2016 to give evidence and present arguments. The sponsor did not appear at the hearing.
At [6] – [29] of its Decision Record the Tribunal set out the claims and evidence of the Applicant. At [11] the Tribunal noted that the Applicant had stated that the sponsor was five months pregnant and at [12] it recorded that the Applicant agreed that he had last lived with the sponsor in February 2015, some 15 months before. The Applicant said that the sponsor was living with her mother at Liverpool but that she visited him from time to time when she needed money and that he was trying to convince her to come back.
At [19] the Tribunal informed the Applicant that it might infer from the sponsor’s failure to attend the hearing that their separation was permanent. However the Tribunal gave the Applicant an opportunity to provide some evidence from the sponsor in the form of a Statutory Declaration to support his claim and in the result on 26 April 2016 the Applicant forwarded a Statutory Declaration of the sponsor declared on 22 April 2016 to the Tribunal, which stated:
Stating that Mandeep Singh and me are married together and I want my partner to stay in Australia. We are doing it hard especially because of Mandeep’s job and his recent criminal charges. So that why I moved in with my family so we can save money. We can’t afford to live together because of the money issue we have. It will be harder for him to cope while processing this visa. So please let him stay while the application is processing. We will be very thankful for everything. Thank you
At [21] the Tribunal recorded that it asked the Applicant what compelling reasons he relied upon, if it was satisfied that he was still in a genuine partner relationship with the sponsor. At [23] it recorded that in would need documentary evidence in relation to the claimed pregnancy and evidence from the sponsor that she was pregnant and that the Applicant was the father. At [24] the Tribunal recorded that one compelling reason proffered by the Applicant was that he could not return to India because he was facing criminal charges in Australia.
At [30] – [54] of its Decision Record the Tribunal considered the Applicant’s claims and evidence as to whether he met Condition 3001 and, if he did not, whether there were compelling reasons for not applying Condition 3001.
At [35] the Tribunal found that because the Applicant had ceased to hold a substantive visa on 21 October 2013 he had not satisfied Condition 3001 as his application for the Temporary Partner visa was not made within 28 days after that date.
From [36] – [54] the Tribunal considered whether or not there were compelling reasons for not applying Condition 3001.
At [40] the Tribunal restated that the Applicant had told the Tribunal that he and the sponsor had separated in February 2015 after a number of fights and had not lived together as a married couple since then.
At [44] – [48] the Tribunal recorded inconsistencies and implausibilities in the evidence of the Applicant and the sponsor. The Tribunal noted in [47] that the sponsor had made no mention of being pregnant or that the Applicant was the father of any child with whom she was pregnant, as claimed by the Applicant. This led the Tribunal to not be satisfied on the evidence before it that the sponsor was pregnant with the Applicant’s child.
The ultimate conclusions of the tribunal were expressed in [50] – [55] as follows:
[50] For the purposes of cl.820.211(2)(d)(ii) and whether there are compelling reasons, on the evidence before it, the Tribunal does not consider that it can be satisfied that either the applicant or the sponsor is telling the truth about the current state of their relationship. Thus the Tribunal cannot be satisfied they are telling the truth about the nature of their relationship generally, or the reasons which they claim are relevant to assessing compelling reasons.
[51]In any event, that the sponsor wife did not want the applicant to go back to India and leave her alone in Australia, or that culturally she would not want to live in India with him, does not amount to compelling reasons here.
[52]Further, even if the Tribunal was satisfied that they were telling the truth about their relationship, the fact that they are separated and have been so for over 12 months would substantially lessen any difficulties they claim to have about the applicant returning alone to India to apply for a visa.
[53]The applicant has also stated that he is facing criminal charges here in Australia and must be in court shortly so he should not be required to leave the country to apply for a partner visa at this time.
[54]The Tribunal does not consider this is a compelling reason, either alone or in combination with his overall circumstances, for waiving the Schedule 3 criteria. The Tribunal considers he will be able to remain in Australia until the criminal matter is finalised, and the Department will facilitate this through bridging visas, and then he may return to India to lodge an offshore partner application.
[55]The Tribunal is thus not satisfied there are compelling reasons here and this means the applicant does not satisfy cl.820.211(d)(ii). Hence he does not satisfy cl.820.211 as a whole. This means that the decision under review is affirmed.
Grounds of Attack on Tribunal Decision in this Court
The substantive Grounds of the Application filed in this Court are as follows:
1. JURISDICTIONAL ERROR HAS BEEN MADE IN DECISION MAKING BY AAT
2. INTERPRETATION OF THE LAW AND
3. APPLICANT HAS NOT BEEN GIVEN ENOUGH TIME/OPPORTUNITY TO EXPLAIN
Adjournment Application Made at Hearing
Halfway through the hearing the Applicant applied for an adjournment on the following basis:
THE INTERPRETER: I actually need some more time to arrange a lawyer. I was proceed with my other case and because of the lack of the funds, I couldn’t arrange a lawyer for this particular case.
HIS HONOUR: All right. Well, he is applying for an adjournment, is he?
THE INTERPRETER: Yes.
(TP 8.11 – 17)
Mr Liu, who appeared for the Minister, opposed any adjournment.
I refused the adjournment application which was made without any prior notice. At the First Court Date on 1 July 2016 the matter was set down for final hearing on 24 August 2017. The Court was in a position to bring the final hearing date forward to 8 March 2017, and it did so by an order made on 7 October 2016 when the Applicant was present in Court. Thus he had known of the final hearing for some 5 months. Since he filed his Application on 8 June 2016 he had had 9 months to obtain the services of a lawyer. There had been ample time for him to obtain or seek to obtain legal representation and legal advice. It is unfortunate that he had insufficient funds to obtain a lawyer but that is the position of many applicants in cases of this kind. The adjournment application was made very late and had not been foreshadowed to either the Court or to the First Respondent’s lawyer prior to it being made. Further, there would be a waste of legal costs which would probably not be recoverable by the First Respondent if I had granted the adjournment. Finally, it would have been necessary to grant an adjournment for a lengthy period of time, approximately one year, or otherwise displace another hearing in my docket during that period. In these circumstances I did not consider that it was in the interests of justice that there should be any adjournment.
Nevertheless, in an attempt to obviate any possible disadvantage to the Applicant, at the conclusion of the hearing I ordered as follows:
1. In the event the Applicant wishes to put on any further Written Submissions in support of his Application for judicial review in this proceeding he do so by sending them to the Chambers of Judge Dowdy by 29 March 2017.
In the result the Applicant did not avail himself of the opportunity afforded to him by this order.
Consideration
Unfortunately for the Applicant his Grounds entirely fail to assert, identify or particularise any jurisdictional error by the Tribunal. Further, at the hearing the Applicant was also unable to meaningfully articulate any jurisdictional error.
In these circumstances it is not incumbent on the Court itself to independently consider whether the Tribunal has committed a jurisdictional error which has not been identified by the Applicant: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19] per Beach J; SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [4] – [5] per Madgwick J and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 per Reeves J.
Nevertheless, I have considered the Decision Record of the Tribunal for myself and am unable to discern jurisdictional error.
First, at [37] of the Decision Record the Tribunal correctly noted that the expression “compelling reasons” is not defined. It then made apposite reference to two cases relevant to whether there are “compelling reasons”, namely the decision of Bromberg J in MZYPZ v Minister for Immigration (2012) FCA 478 at [10] and the decision of the Full Court of the Federal Court of Australia in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24]. There does not appear to have been any misapprehension or misinterpretation of the law.
Second, the Tribunal’s decision does not exhibit “illogicality” or “irrationality” or “lack any intelligible justification” such as would constitute jurisdictional error.
Third, Ground 3 is not made out. The Applicant lodged his application for merits review with the Tribunal on 23 December 2014. On 21 January 2016 the Tribunal invited the Applicant to attend a hearing on 19 February 2016. On that same date the Tribunal requested him to provide a copy of the Decision Record of the Delegate to the Tribunal, which he did. On 19 February 2016, being the date of the scheduled hearing for the Tribunal, it received a Medical Certificate from the Applicant stating that he was unfit to work from 19 February 2016 to 20 February 2016 with a request that the scheduled hearing be postponed. The Tribunal agreed to the postponement and on 16 March 2016 the Tribunal wrote to the Applicant informing him that his hearing before the Tribunal would be held on 8 April 2016, when he attended. The Applicant was then given by the Tribunal two weeks after that hearing until 22 April 2016 to provide the Statutory Declaration from the sponsor, which is referred to above. In these circumstances the Applicant was given more than enough time and opportunity to present evidence and make claims in support of his Temporary Partner visa application.
Disposition
It follows that all three Grounds relied on by the Applicant fail to establish that the decision of the Tribunal is affected by jurisdictional error and the Application must be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 22 February 2018
2
4
3