Singh v Minister for Immigration
[2017] FCCA 2447
•5 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2447 |
| Catchwords: MIGRATION – Application for Partner (Temporary)(Class UK subclass 820) visa – whether tribunal considered a relevant matter – where Tribunal made findings of credit and that applicant and sponsor had fabricated claims – whether Tribunal took into account a relevant consideration. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 368 Migration Regulations 1994 (Cth), r.1.15A, Sch.2, cl.820.211, cl.820.211(2)(d)(ii), cl.820.221 |
| Cases cited: Singh v Minister for Immigration & Anor [2015] FCCA 1196 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 |
| Applicant: | JASTINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 88 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 4 October 2017 |
| Date of Last Submission: | 4 October 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 5 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Travers |
| Solicitors for the Applicant: | Chand Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 5 September, 2017 be dismissed.
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 88 of 2017
| JASTINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applies for judicial review of a decision of the second respondent that affirmed a decision of a delegate of the first respondent to refuse the applicant a Partner (Temporary)(Class UK subclass 820) visa. The applicant’s case, in short compass, is that the Tribunal’s decision is marred by jurisdictional error because the Tribunal did not take into account two matters that bore upon the evidence given by the applicant’s visa sponsor.
The first respondent opposes the application. He argues that the Tribunal was not obliged to take into account the matters identified by the applicant, and in any event, took those matters into account when it reached its decision.
The second respondent entered a submitting appearance.
Both parties have filed written submissions.
Background
The background to the present application is lengthy. It is well set out in the first respondent’s written submissions. Counsel for the applicant confirmed the accuracy of the first respondent’s submissions in that regard. The following recitation of the background to this matter is taken largely from the first respondent’s comprehensive written submissions.
The applicant is a 34 year old Indian national who arrived in Australia in January 2009 on a student visa, which ceased on 30 August, 2011.
On 27 July, 2011 the applicant applied for a temporary skilled visa, which was refused by a delegate of the applicant on 24 May, 2012. A subsequent application for review by a migration review tribunal was also refused on 9 May, 2013.
On 30 May, 2013 the applicant applied for a combined Partner (Permanent) (Subclass 801) and Partner (Temporary) (Class UK Subclass 820) visa (the visa) on the basis of his relationship with his wife and sponsor, Alexandria Layt.
On 24 June, 2013 a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 of Schedule 2 of the Migration Regulations 1994 (Cth). The delegate found that there was insufficient evidence for the delegate to be satisfied that the applicant and the sponsor were in a genuine spouse relationship as defined in s.5F of the Act.
The applicant applied for a review of the delegate’s decision by a migration review tribunal. On 6 November, 2014 that Tribunal affirmed the delegate’s decision on the basis that the applicant did not meet the criteria at Schedule 3 of the Regulations. The Tribunal was not satisfied that there were compelling reasons for not applying the criteria as required by cl.820.211(2)(d)(ii).
The applicant applied for judicial review of the Tribunal’s decision. I dismissed that application on 11 July, 2016 (Singh v Minister for Immigration & Anor [2015] FCCA 1196). After I did so, the Full Court of the Federal Court of Australia delivered judgment in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. The applicant appealed the dismissal of his review application and his appeal was allowed by consent on the basis that the Tribunal fell into jurisdictional error of the type identified in Waensila. The review application was remitted to the Administrative Appeals Tribunal (that in the meantime had inherited the functions of the former migration review tribunal) for rehearing.
Following remittal, on 16 November, 2016 the applicant appeared before the Administrative Appeals Tribunal to give evidence and present arguments with the assistance of a Punjabi interpreter. The Tribunal took evidence from the applicant’s sponsor Ms Layt, who refused to give evidence after 10 minutes claiming she was stressed. The Tribunal also telephoned the sponsor’s mother (who did not answer the phone). The Tribunal permitted a further seven days for the applicant to make submissions. The applicant’s solicitors lodged further written submissions on 23 November, 2016 and 24 November, 2016.
Following submissions made about the sponsor’s and the sponsor’s mother’s inability to give evidence at the 16 November, 2016 hearing a second hearing was held before the Tribunal on 4 January, 2017 at which the applicant, the sponsor and sponsor’s mother gave evidence. The applicant was again assisted by a Punjabi interpreter.
The applicant was also given until Friday 6 January, 2017 to make any further submissions and (by his solicitors) availed himself of that opportunity on 6 January, 2017.
The Tribunal’s decision
On 9 January, 2017 the Tribunal affirmed the delegate’s decision to refuse the applicant a Partner (Temporary)(Class UK subclass 820) visa.
The Tribunal correctly identified the relevant statutory provisions that had a bearing on the application it had to determine. It is convenient to set those matters out now. Spouse is defined at s.5F of the Act:
Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The Regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) or (d) exist.
Regulation 1.15A provides that if the Minister is considering a Partner (Temporary) visa application, the Minister must consider all of the circumstances of the relationship, including:
a)the financial aspects of the relationship;
b)the nature of the household;
c)the social aspects of the relationship; and
d)the nature of the person’s commitment to each other.
The Tribunal noted a marriage certificate on file which recorded the parties’ marriage on 14 May, 2013. It found that the applicant and the sponsor were validly married for the purposes of s.5F(2)(a) of the Act.
The Tribunal considered the matters adumbrated in reg.1.15A(3) of the Regulations and undertook a detailed consideration of the evidence of the applicant, the sponsor and the sponsor’s mother in relation to aspects of the relationship, as well as the limited documentary evidence submitted by the applicant and information the Tribunal obtained from the sponsor’s Facebook page.
The Tribunal analysed the evidence in considerable detail in lengthy and careful reasons. The Tribunal concluded that the applicant and his sponsor were not credible witnesses. It found that the applicant had contrived the relationship with his sponsor and fabricated his relationship claims. The basis upon which the Tribunal came to that conclusion is laid bare in the Tribunal’s reasons.
The Tribunal did not accept that the documents provided by the applicant demonstrated that he and his sponsor shared finances, or had made joint purchases or had shared household finances or liabilities. The Tribunal found the applicant’s evidence about the parties’ finances and the sponsor’s work, support and Centrelink benefits was vague and not consistent with being in a genuine relationship. The Tribunal found at [111] of its reasons that “there is no evidence of financial aspects consistent with a spousal relationship at time of application or at time of decision”.
As to the household aspects of the applicant’s relationship with his sponsor, the Tribunal considered the applicant’s claim that he moved into the sponsor’s housing commission home and some correspondence addressed to him at that address. However, “Given the Tribunal findings about the applicant’s and sponsor’s credibility and the limited household documentation, the Tribunal [did] not accept the couple shared a household together.” (at [85] of the Tribunal’s reasons).
The Tribunal considered the social aspects of the applicant’s relationship with his sponsor. The Tribunal referred to and considered the evidence of the applicant’s mother-in-law but placed little weight on her evidence as she had not regularly seen the couple together at her daughter’s home. The Tribunal also thought that there were some inconsistencies in her evidence when compared to the applicant’s evidence. The Tribunal placed no weight on an unwitnessed statement from the applicant’s father-in-law and a similar statement from the applicant’s parents.
After considering other evidence from the applicant’s friends, the Tribunal considered the photographic and other evidence of the parties’ social life together and said:
96. The photos provided were of the wedding and showed themselves, the celebrant and two other people (plus baby). There were three photos of them in social situations at the beach and park. At the 4 January 2017 hearing the applicant provided photos for the sponsor’s sister’s birthday taken two days before the hearing. On 6 January 2017, the applicant provided three scanned photos, of which only one included the applicant. The tribunal considers the limited photos are not consistent with a genuine couple in social situations or spending time together.
97. As discussed above the limited photos of the baby and the applicant when the baby was young, the limited photos of the couple in social situations over the period and lack of photos on the sponsor’s Facebook of the applicant further reinforces the tribunal’s view that the couple do not socialise together.
98. Further, as discussed above the applicant and sponsor’s evidence about their social activities was vague, hesitant and not consistent. They did not spend Xmas or New Year’s together. The applicant’s evidence about their first Xmas together was also vague and changed and not credible. The tribunal considers the applicant was making it up as he went along. It was also evident that the sponsor was prepared to be untruthful about spending New Year’s Eve’s together.
99. Given the tribunal’s findings of the applicant’s and sponsor’s credibility above and the limited evidence, the tribunal does not accept the applicant and sponsor socialise with each other.
100. The tribunal finds there was very limited evidence of social aspects of the relationship.
The Tribunal did not accept that the applicant and sponsor were committed to each other. It found that the accounts of the parties’ meeting, marriage proposal, development of the relationship, their child’s milestones and attributes and contact with the sponsor and applicant’s parents was inconsistent and vague. The Tribunal also found that the applicant’s evidence about their future plans was vague and hesitant.
The Tribunal was not satisfied that at the time of the application and the time of the decision, the applicant and sponsor were in a genuine spouse relationship. Consequently, the applicant did not meet the criteria prescribed by cl.820.211 and cl.820.221 of the Regulations. The Tribunal also considered the alternative criteria in cls.820.211(7), 820.211(8), 820.211(9), 820.221(2), 820.221(3) of Schedule 2 to the regulations, but considered that the applicant did not satisfy any of them either.
The Tribunal noted that the visa application was not made within 28 days of the date the applicant ceased to hold a substantive visa in 2011 and that the applicant consequently did not satisfy criterion 3001 in Schedule 3 to the Regulations, as he was required to do by cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations unless the first respondent was satisfied that there were compelling reasons for not applying those criteria. The Tribunal considered whether there were compelling reasons for not applying the Schedule 3 criteria. It said:
117. The tribunal discussed compelling reasons with the applicant. He said it was because he was in a relationship with his wife, stepson and supported them and they were fully dependent upon him.
118. The expression “compelling reasons” is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute “compelling reasons” for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
119. However, the tribunal has found above that the applicant was not in a genuine relationship at time of application or decision. Accordingly it is not necessary to make a finding on compelling reasons.
The grounds of review
By his amended application for review filed on 5 September, 2017 the applicant presses the following ground of review:
1. The Tribunal engaged in conduct which amounted to jurisdictional error by failing to consider a relevant consideration.
PARTICULARS
(a) The Tribunal fell into jurisdictional error by failing to consider the medical certificate issued to the Sponsor on 16 November 2016.
(b) The Tribunal fell into jurisdictional error by failing to consider the sworn testimony of the Sponsor at the 2014 Tribunal hearing and the signed statement of the Sponsor of 4 November 2012.
The applicant acknowledges that the Tribunal made various adverse findings against both he and his sponsor. Specifically, the Tribunal found that the applicant and the sponsor were not witnesses of truth. As I have set out above, the Tribunal set out in some detail its reasons for reaching those conclusions. I accept that to a large extent, the Tribunal’s view was informed by the inconsistencies perceived by the Tribunal between the evidence of the applicant and his sponsor and the internal inconsistencies within the applicant’s own evidence. The applicant does not cavil with the Tribunal’s treatment of the evidence and its findings of inconsistency.
The sponsor’s evidence during the first Tribunal hearing on 16 November, 2016 needed to be suspended because she could not continue. The Tribunal described the occasion of the sponsor’s evidence as follows:
25. At the 16 November 2016 haring, the sponsor gave evidence about the couple’s first meeting and development of the relationship. However, after 10 minutes said she was stressed and could not remember. The tribunal gave her time to take a break. At first she refused to return to the hearing, but eventually she returned. The tribunal explained it was important for her to give evidence and support her husband’s application. The tribunal noted she had given evidence before tribunals previously. The sponsor said she was stressed that the father of her child would be deported. The tribunal reassured her that it was important to give evidence about their relationship and asked her to tell the tribunal about the development of their relationship. The sponsor said she could not. She remained in the hearing with the children, but did not give any further evidence.
26. After the November 2016 hearing, the tribunal allowed 7 days for further submissions. The tribunal has considered the agent’s submissions of 23 November 2016 regarding procedural fairness and difficulty in giving evidence with children and request for a second hearing for the sponsor and mother in-law to give evidence. The tribunal has considered the GP letter dated 16 November 2016.
27. While the sponsor may have had difficulty arranging childcare, the tribunal notes the applicant and sponsor had been aware of the hearing since the invitation on 7 October 2016. There was no request for postponement and the hearing response noted the sponsor and mother in law would also attend to provide evidence.
28. While the GP letter indicates the sponsor attended the clinic with anxiety and depression and was prescribed medication on 16 November 2016, there was no medical evidence or mention that the sponsor could not give evidence.
29. Further, the tribunal having observed the sponsor at hearing, does not accept she was unable to give evidence. The tribunal does not accept the sponsor had a nose bled or was otherwise unable to give evidence. The tribunal does not accept that having two children in the hearing or waiting to give evidence meant she could not give evidence. The sponsor and children were not confined to the hearing room, but waited outside while the applicant gave his evidence.
30. The tribunal does not accept the sponsor was so stressed she could not remember. The sponsor proceeded to give evidence at the outset. She described the circumstances of their first meeting. The tribunal confirmed the sponsor’s evidence, particularly in relation to their first meeting being in Toowoomba. She started to describe the proposal. However, when the tribunal noted her account was not consistent with the applicant or her previous accounts or statements, the tribunal considers it was then the sponsor became stressed and stopped giving evidence.
31. Later when the sponsor returned to the hearing, the tribunal asked her to describe the development of their relationship. She said she could not. The sponsor, however, remained in the hearing room with the children until the end of the hearing.
32. In any event, the tribunal offered the applicant another hearing on 4 January 2017, and the sponsor and mother in law attended.
The applicant argues that a medical certificate was provided to the Tribunal supporting the fact that the sponsor was unwell on the day of the hearing. He argues that the certificate stated that the sponsor was seen that day with symptoms of severe anxiety and depression and was prescribed with antidepressants. He argues that:
11. The Tribunal acknowledged receipt of the medical certificate but made no other comment on it. This is curious in circumstances where, despite independent evidence of a medical specialist as to the Sponsor’s condition, the Tribunal did not accept that the “sponsor had a nose bled [sic] or was otherwise unable to give evidence.”
12. Whilst the Tribunal referred to the medical certificate, there is no evidence that it was actually considered by the Tribunal, especially in light of Tribunal’s findings in relation to the Sponsor’s ability to give evidence.
13. As a result of the medical certificate the Tribunal ought to have had reservations as to its finding as to the Sponsor’s ability to give evidence.
A number of observations can be made about these arguments, namely:
a)the medical evidence was not from a medical specialist, but rather a general practitioner;
b)the letter from the general practitioner did not suggest that the sponsor had suffered from a nose bleed;
c)the letter from the general practitioner did not either expressly, or by implication, suggest that the sponsor was unable to give evidence; and
d)it is clear from the Tribunal’s reasons that the Tribunal did more than simply acknowledge the letter from the general practitioner, but rather analysed its contents which, along with the Tribunal member’s own observations of the sponsor, was used to reach a conclusion about the sponsor’s ability to give evidence.
The findings made by the Tribunal about the sponsor’s ability to give evidence was plainly open to it on the material before it. It is clear that in forming the view that it did about the sponsor’s ability to give evidence, the Tribunal took into account the letter from her general practitioner.
The applicant also advances an argument that the Tribunal did not take into account the evidence given by the applicant’s sponsor at the hearing before the first migration review tribunal in 2014 and her first written statement made in 2014.
Again, on the basis of the Tribunal’s reasons, this argument cannot be made good. It is apparent that the Tribunal did indeed refer to the evidence given by both the applicant and the sponsor at the earlier 2014 hearing. Specifically, the Tribunal said:
19. In summary, firstly the tribunal found the applicant’s evidence at hearing vague, hesitant and not forthcoming and often shifted. Secondly, his evidence was not consistent with his evidence before the first tribunal on 29 October 2014 (decision 6 November 2014). Thirdly, his evidence was not consistent with the sponsor’s evidence about major events, such as where they first met, where they spent New Year’s Eve, key baby milestones in respect of their child. Fourthly, the tribunal found the sponsor’s evidence was vague, hesitant, not credible or forthcoming and not consistent. At times it was also non responsive. Fifthly, the documentary evidence provided was not consistent with the relationship being a genuine spouse relationship. Sixthly, the sponsor’s Facebook pages showed she was in a relationship with another person, Miggzy from October 2016 and was not in a relationship and looking for a boyfriend in 2012 and 2013. The applicant was not included as a friend on the sponsor’s or mother in-law’s Facebook and there were no photos of the applicant on the sponsor’s Facebook timeline or page.
…
46. The applicant’s and sponsor’s evidence before the first tribunal in 2014 about the development of the relationship and contact between the sponsor and his parents was also not consistent. For instance, the applicant said they went to the Gold Coast once and to Salisbury hotel once and dinner a couple of times at the sponsor’s mother’s house. They did not go out much as he was a taxi driver and did not have much time. He picked up the sponsor every two or three weeks to go to the Victory on Thursdays. However, the sponsor’s evidence was they went out many times to the beach a lot, and stayed in motels.
The Tribunal was not bound to refer to every piece of evidence and every contention made by the applicant. It is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight. Where a matter is not mentioned in a Tribunal’s statement of reasons, the usual inference to draw is that the Tribunal did not consider such a matter to be material in the sense canvassed in s.368 of the Act. In any event, it should not lightly be inferred that the Tribunal overlooked the sponsor’s evidence here, especially where the Tribunal has referred to that evidence in its reasons for decision.
I am not prepared to infer that the sponsor’s evidence given in 2014 (either by way of oral evidence or written statement) was overlooked and not considered. Her evidence was plainly considered given the Tribunal’s remarks about its inconsistency with the applicant’s evidence given at the same time.
I accept the first respondent’s submissions that even if I were to find that the Tribunal overlooked the sponsor’s 2014 evidence any alleged error in that respect is immaterial must be material. Given the findings by the Tribunal that the applicant and sponsor were not credible witnesses and had fabricated their evidence and claims of a relationship, it is entirely unlikely that the Tribunal’s decision would have been any different. The Tribunal summarised its reasons for forming such a view at [19] which I have set out above.
Conclusion
The applicant does not establish that the Tribunal’s decision is affected by jurisdictional error. The amended application for review must be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 October, 2017
Date: 5 October, 2017
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