SINGH v Minister for Immigration

[2018] FCCA 235

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 235

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Residence) (Class BS) Subclass 801 permanent visa – no evidence applicant had a subclass 820 temporary partner visa – applicant failing to satisfy relevant criteria – no jurisdictional error discerned.

Legislation:
Migration Act 1958
Migration Regulations 1994, cl.820.211(2)(d)(ii) of Schedule 2; criterion 3001 of Schedule 3

Applicant: PARMVIR SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 25 of 2016

Judgment of: Judge Riley

Hearing date: 30 January 2018

Date of last submission: 30 January 2018

Delivered at: Melbourne

Delivered on: 30 January 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Elena Arduca

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 6 January 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG25 OF 2016

PARMVIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant is a citizen of India.  He was born in 1983.  He came to Australia in 2008 as a family member of his wife, who had a student visa to study in Australia.  The applicant’s student visa was cancelled on 29 June 2010. 

2. The applicant lodged a protection visa application on 17 March 2011.  However, it was deemed to be invalid, because he had not submitted any personal identifiers.  The applicant lodged another protection visa application on 14 October 2011 and that had the same deficiency.  He lodged a third protection visa application on 20 December 2011.  It was refused on 6 February 2012. 

3. On 2 March 2012 the applicant applied for a subclass 820 temporary partner visa and a subclass 801 permanent partner visa.  He claimed to be in a relationship that had commenced in November 2011.  The applicant married his sponsor on 25 February 2012, about three months after the relationship commenced. 

4. On 15 July 2013, the applicant’s representatives informed the Department of Immigration and Citizenship (“the Department”) that, for reasons of domestic violence against him, the applicant’s relationship with his sponsor had ended. 

5. On 14 August 2013, a delegate of the Minister refused the subclass 820 temporary partner visa application.  The reason given was the applicant had not made the partner application within 28 days of holding a substantive visa.  Consequently, he was not able to satisfy clause 820.211(2)(d)(ii) of Schedule 2 and criterion 3001 of Schedule 3 to the Migration Regulations 1994.  The delegate also considered that there were no compelling reasons for not applying criterion 3001.  Because the subclass 820 temporary partner visa was refused, the delegate also refused the subclass 801 permanent partner visa, as one of the criteria for that visa was that the applicant have a subclass 820 temporary partner visa. 

6. The applicant applied for review of the decision to refuse to grant him a subclass 820 temporary partner visa, but not the decision to refuse to grant him the subclass 801 permanent partner visa.  On 19 May 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant the subclass 820 temporary partner visa.  The applicant did not seek judicial review of that decision. 

7. It then transpired that the applicant had not been properly notified of the delegate’s decision in respect of his subclass 801 permanent partner visa.  The Department advised the applicant of this circumstance on 10 July 2015.  The delegate made another decision to refuse the subclass 801 permanent partner visa.

8. On 23 July 2015, the applicant applied to the Tribunal for review of the refusal of his subclass 801 permanent partner visa.  This is the application that is the subject of the present proceedings.

9. The Tribunal invited the applicant to attend a hearing on 4 December 2015. The applicant’s representative asked the Tribunal for an adjournment on the grounds that the applicant was unable to attend work/school for 13 days from 28 November to 10 December 2015 for reasons of an unspecified medical condition.  The Tribunal accepted the adjournment request, and invited the applicant to attend a hearing on 18 December 2015.  The hearing invitation specifically said that if the applicant was unable to attend the hearing he should advise the Tribunal.  The invitation also said that if the applicant did not obtain an adjournment and did not attend the hearing, the application might be dismissed in his absence.  The Tribunal also asked the applicant to provide evidence that he had been granted a subclass 820 temporary partner visa, and said it was a key criterion for the grant of a subclass 801 permanent partner visa.

10. The applicant did not attend the hearing on 18 December 2015 and nor did his agent.  There was no application for an adjournment.  There was no response to the request that the applicant provide evidence that he had been granted the subclass 820 temporary partner visa.  The supplementary court book shows at page 12 that two text reminders were sent to the applicant about the hearing.  One was sent on 11 December 2015 at 11am and one on 17 December 2015 at 11am.

11. The Tribunal considered that it would be appropriate to proceed to deal with the matter without giving the applicant a further opportunity to be heard.  The Tribunal considered that, as there was no evidence before it that the applicant had a subclass 820 temporary partner visa, that he did not satisfy the criteria for the subclass 801 permanent partner visa.  The Tribunal concluded that the applicant did not meet the relevant criteria, and affirmed the decision under review.

12. The application to this court was filed on 6 January 2016 apparently without the benefit of legal assistance.  The applicant appeared in court today without legal assistance.  The application does not contain anything that could amount to a jurisdictional error.  The applicant simply said that he did not understand about the different visa subclasses, and by the time he understood, it was too late. 

13. In oral submissions to the court, the applicant explained that lawyers had advised him to go for a domestic violence case.  He said other lawyers had told him that they could not submit what he described as a schedule 3, as the Tribunal’s decision had already been made.  He told the court that he wanted another year and a half, or another year, to be able to lodge another visa application.  He said that lawyers did not guide him well.

14. The applicant has not raised anything that would amount to a fraud on the Tribunal.  His complaints about lawyers are very vague and, at most, might suggest some negligence on their part.  This does not amount to a jurisdictional error.  It does not seem to me to be appropriate to delay the decision in this matter to enable the applicant to have another year or year and a half to make another visa application, when the matter has already been in this court for over two years.

15. I have read the Tribunal’s reasons for decision and looked at relevant parts of the court book.  I have been unable to discern any jurisdictional error in the Tribunal’s decision or decision making process. 

16. The Tribunal was permitted, by the Migration Act 1958, to proceed in the applicant’s absence, where the applicant did not attend the hearing.  The Tribunal gave the applicant proper notice of the hearing.  The Tribunal had previously granted the applicant an adjournment on his request.  The Tribunal asked the applicant to provide evidence that he had a subclass 820 temporary partner visa.  The Tribunal advised the applicant that if he did not attend the hearing, the decision may be affirmed in his absence.

17. The Tribunal sent the applicant two SMS reminders about the hearing.  However, there was no appearance at the hearing, no contact with the Tribunal seeking another adjournment and no provision of evidence indicating that the applicant did, in fact, have a subclass 820 temporary partner visa.  In the circumstances, it seems to me that it was open to the Tribunal to proceed to determine the matter in the applicant’s absence.

18. As there was no evidence before the Tribunal that the applicant had a subclass 820 temporary partner visa, the applicant was unable to satisfy the criteria for the subclass 801 permanent partner visa.  The applicant was unable, therefore, to satisfy the relevant criteria and the Tribunal had no option but to affirm the delegate’s decision. 

19. Consequently, the application will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     2 February 2018