Singh v Minister for Immigration

[2018] FCCA 1355

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1355

Catchwords:
MIGRATION – Application for judicial review – temporary partner visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

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

Applicant: MANDEEP  SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1997 of 2016

Judgment of: Judge Riethmuller

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

THE COURT ORDERS, BY CONSENT, THAT:

1. The time for filing the judicial review application be extended to 16 September 2016.

IT IS FURTHER ORDERED, BY THE COURT, THAT:

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1997 of 2016

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 July 2016 affirming a decision of a delegate of the first respondent not to grant the applicant a partner visa. 

2. The applicant is a citizen of India who arrived in Australia on 5 April 2007 on a student visa.  The applicant held a student visa until June 2011 when that visa ceased.  He did not return to India, and he did not obtain another substantive visa.

3. On 19 July 2013, the applicant applied for a partner visa based on his relationship with Ms Danielle Stevens, an Australian citizen, whom he married on 2 March 2013.  On 11 September 2014, a delegate of the first respondent refused to grant a partner visa to the applicant on the basis that he did not satisfy the relevant Schedule 3 criteria and that there were no compelling reasons to waive non-compliance.  That is, as the applicant had applied for a partner visa within Australia at a time when he did not have a substantive visa, he was required to show compelling reasons to obtain a partner visa.

4. The applicant sought a merits review of the delegate’s decision on 21 August 2015 before the Tribunal.  The Tribunal affirmed the delegate’s decision.  The applicant then sought judicial review of the Tribunal’s decision in this Court.  On 20 April 2016, the applicant was successful in that the Court remitted the matter by consent to the Tribunal for reconsideration on the basis identified in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 on the basis that the Tribunal erred by confining its consideration of compelling reasons to circumstances which existed at the time of the application and not subsequent circumstances.

5. As a result, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 July 2016.  That invitation was sent on 11 July 2016.  The applicant did not respond to this invitation.  The Tribunal on 29 July 2016, after the applicant had failed to participate in a hearing or present arguments, made a decision refusing the applicant’s application.  In substance, the Tribunal affirmed the delegate’s decision saying:

   2.  … As Mr Singh did not hold a substantive visa at the time he applied for the partner visa, he does not satisfy the Schedule 3 criteria as required by cl.820.211(2)(d).  Having considered Mr Singh’s circumstances, the Tribunal is not satisfied that there are compelling reasons to waive the Schedule 3 criteria, therefore the Tribunal affirms the decision under review.

Tribunal’s Findings

1. The Tribunal found that, as the applicant was not the holder of a substantive visa at the time he applied for a partner visa, he was required to establish compelling reasons.  The Tribunal went on to find that he did not establish compelling reasons on the basis of the material that was before them.  It is most unfortunate for the applicant that he did not take advantage of the first decision being set aside and provide material about circumstances that may have arisen between the first decision of the Tribunal and the second decision.

2. The Tribunal in its second decision noted that the applicant had not attended and the difficulty that this presented, saying:

   19.  Mr Singh did not attend the hearing on 28 July 2016 and did not submit written evidence to the Tribunal in support of his review application.  It is noted that the Tribunal attempted to contact Mr Singh in May 2016 on the mobile telephone number he has previously provided to the Tribunal.  On 3 May 2016 the Tribunal contacted Mr Singh’s previous representative.  The representative advised that he was still representing Mr Singh in this matter and he confirmed his email address. The Tribunal was satisfied that relevant correspondence, including the hearing invitation was sent to the address provided by the representative.

   20. The Tribunal notes that Mr Singh also did not attend the hearing scheduled for 23 June 2015.  He did however submit documentary material to the Tribunal prior to that hearing date.

   21. It is unfortunate that the Tribunal was unable to hear oral evidence from Mr Singh.  In such circumstances, the Tribunal has relied on information previously provided to the Department and the Tribunal by Mr Singh.

3. The Tribunal turned to consider the genuineness of his relationship with his spouse and had regard to what evidence was before it, but noted that there was no evidence as to the status of the relationship in more recent times.  The Tribunal also regard to the applicant’s claim that Ms Stevens was emotionally dependent upon him.  Whilst accepting that she had a miscarriage in 2013 and subsequently suffered from depression, the Tribunal went on to conclude:

   28. … There is also no information before the Tribunal about whether [Ms Stephens] has continued to be emotionally reliant on Mr Singh.  For this reason, the Tribunal is not satisfied that Ms Stephen’s mental health problems, and her associated emotional reliance on Mr Singh, is a compelling reason to not apply the criteria.

4. The Tribunal also had regard to the applicant’s claim that his stepdaughter was emotionally dependent upon him and attached to him, saying:

   28. … There is also no information before the Tribunal about whether [Ms Stephens] has continued to be emotionally reliant on Mr Singh.  For this reason, the Tribunal is not satisfied that Ms Stephen’s mental health problems, and her associated emotional reliance on Mr Singh, is a compelling reason to not apply the criteria.

5. The Tribunal had regard to his claim that he was financially dependent upon Ms Stevens, saying:

   30. … As this means that Mr Singh’s departure from Australia to apply for the visa would not affect Ms Stephen’s financial situation, the Tribunal does not find that this is a compelling reason to waive the criteria.

6. The Tribunal also considered that it would potentially be difficult for them to be separated given the attachment that he said was in place, saying:

   31. … The Tribunal considers that emotional attachment is a normal part of a partner relationship, therefore it would not, in itself, give rise to compelling reasons.

7. Given that the applicant did not attend for the hearing and the lack of evidence of more recent events, it is not surprising that the Tribunal affirmed the decision of the delegate not to grant the applicant a visa. 

8. The most recent judicial review application was filed on 16 September 2016. 

Extension of Time

1. The current application requires an extension of time as it was not lodged within 35 days of the Tribunal’s decision.  The applicant’s grounds for the extension of time are:

   1. I received the AAT decision of 29 July 2016 on 1 August 2016

   2. I made an application to Federal Circuit Court on 31 August 2016. This application was within time. However, the Court refused to accept this application and advised me to get legal advice before filing the application again.

   3. I contacted various lawyers including the ones on the list provided by Court. Some said that they could not help me with immigration matter, some could not give me an earlier appointment and some said that it could cost me $10,000. I cannot afford this amount. Hence, it took me time to prepare and file this application myself.

   4. My first application was in time and there has only been a short delay since then. Under the circumstances I request that in the interests of the administration of justice the time to file this application be extended and this application be accepted.

2. In this case, the first respondent consents to the application for an extension of time so that the matter may be dealt with on its substantive issues.  I therefore granted such an extension at this hearing.

3. During the course of submissions, the applicant also sought more time to provide further material from his spouse.  The applicant explained that his spouse is currently incarcerated as a result of assaulting another person, and as a result, he has had some difficulty in arranging for her to be available to give evidence or present material. 

4. As this is a judicial review, there seems to me to be no necessity for her to attend or give evidence and that to the extent that she was able to provide significant evidence that could be done by way of Affidavit.  That has not occurred.  It does not seem to me that this is a basis for adjourning these proceedings that have been pending for a lengthy period, particularly in circumstances where there were orders made by Registrar Caporale to file and serve an amended application and written submissions by 19 April 2017, almost a year ago.

Grounds of Application

1. I turn then to consider the substantive grounds.  The applicant sets out eight grounds of review as follows:

   (a) The AAT did not ask me to update the information previously provided, yet the AAT was critical of me in not updating the information and used this as a reason to refuse my application, in its letter dated 11 July 2016 the AAT simply asked me to attend at hearing on 28 July 2016 and present oral evidence and arguments, it did not ask me to submit further information or provide a statement of my current circumstances. 1 could not attend at the hearing, but if I had known or if the Tribunal had asked me to provide further information or a statement of my current circumstances, 1 would have done so.

   (b) AAT relied heavily on absence of further information in arriving at its decision, yet it did not ask me or give me an opportunity to submit further information in writing.

   (c) The AAT did not review or revisit the information and material before it by considering the compelling reasons or circumstances at the time of decision especially when it had not done so at the time of its first decision on 21 August 2015. Without revisiting or reviewing the information before it the Tribunal simply affirmed its earlier decision of 21 August 2015. As the earlier decision of AAT was confined to considering the compelling circumstances that existed at the time of application, the current decision of AAT of 29 July 2016 is also decided on the same basis.

   (d) The AAT did not consider whether compelling circumstances existed at the time of first decision of 21 August 2015 or second decision of 29 July 2016.

   (e) The Tribunal arrived at certain conclusions not supported by any evidence. In para 25 of its decision the AAT states that is was not satisfied that the “parties are in a spousal relationship or that their relationship is a long term as such that this would be a compelling reason to waive the criteria”, despite the Tribunal noting that there was “no evidence before the Tribunal regarding the current status of the parties’ relationship”.

   (f) At para 28 of its decision the AAT concludes that it is “not satisfied that Ms Stephen’s mental health problems, and her associated emotional reliance on Mr Singh, is a compelling reason to not apply the criteria” despite the absence of current information in this regard. Tribunal did not consider the fact that compelling circumstances existed at the time when the information was current.

   (g) At para 29 of its decision the AAT concludes that "the Tribunal is not satisfied that the claim that she is emotionally reliant on Mr Singh is a compelling reason to not apply the criteria despite noting that the Tribunal had “no information before it about Mr Singh's current relationship with Dekoda”.

   (h) At para 31 the Tribunal states that “emotional attachment is a normal part of a partner relationship, therefore it would not, in itself, give rise to compelling reasons”.  The AAT, however, fail to assess this in light of the facts of this case especially the fact my partner had 2 miscarriages and was suffering from depression. Further it did not take into account the emotional attachment/dependence her 5 year old daughter had with/on with me.

2. In substance, the applicant complains that the Tribunal did not do enough to encourage him to provide further evidence and that in the circumstances he was not given a reasonable opportunity to appear and present his case. 

3. I spent some time exploring with the applicant the reasons that he did not attend at the Tribunal hearing which he explained were as a result of the illness of the child in his household.  However, the applicant did not send any note or message to the Tribunal either before or after the hearing advising them that he was unable to attend for these reasons.

4. In circumstances where the Tribunal has had no notice of any request for an adjournment or bases upon which an adjournment might reasonably be granted, it is not possible to conclude that the Tribunal failed to properly consider an adjournment request, nor that they failed to accord the applicant procedural fairness.  There is no evidence before me that shows that it was simply not possible for the applicant to have attended at the Tribunal hearing.  This is not a case where the applicant had suffered something like an injury or illness and was thereby prevented from attending.  In these circumstances, I am not persuaded that the Tribunal failed to accord the applicant procedural fairness.

5. Similarly, it is not for the Tribunal to set out in detail the additional evidence that an applicant may seek to obtain to place before the Tribunal.  It is for the applicant to present his case and the Tribunal to determine whether or not to grant the visa.  In these circumstances, I am not persuaded that the Tribunal have erred in not providing the applicant with more assistance in encouraging him to place material before the Tribunal or to attend before the Tribunal.

6. In any event, there was a letter of 24 May 2016 inviting the applicant to provide any further information that he wanted considered, which was done in circumstances where he was aware that he failed in his first hearing, the decision being set aside by the Court.  It must have been obvious that further information and material would reasonably be required if he were to expect a different outcome on the second hearing.  In these circumstances, I am not persuaded that grounds (a) and (b) of his application can succeed.

7. The subsequent grounds (c) and (d) essentially claim that the Tribunal did not consider whether compelling circumstances existed at the time of the second decision.  It seems to me that this is at best a fine argument given that the Tribunal were not provided with further material to consider.  As a result, the only material was what was already before the Tribunal from previous occasions, and therefore, regardless of the point in time chosen by the Tribunal, the evidence before it would have been the same.  I am not persuaded that this argument can be made out either technically or having regard to the actual terms of the decision.

8. The remainder of the grounds, grounds (e) to (h), take issue with various factual findings made by the Tribunal.  It is not open to this Court to engage in merits review of the Tribunal’s decisions.  This is not an option that is open in judicial review proceedings.  It does not appear to me that any of the matters raised were matters that are not open to the Tribunal to conclude, nor that it would be illogical for the Tribunal to reach the conclusions that it did. 

9. As a result, I am not persuaded that the applicant has established grounds for judicial review. 

10. In these circumstances, I must therefore dismiss the application.  I therefore dismiss the current application.

    [Further argument ensued]

11. In this matter, the applicant has been entirely unsuccessful.  Costs ordinarily follow the event.  The amount claimed is less than the scale fee and appears reasonable.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 25 May 2018