SINGH v Minister for Immigration

[2017] FCCA 2315

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2315

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant Partner visa in circumstances where applicant failed to satisfy criterion that required that the application for Partner visa be lodged not more than 28 days after applicant ceased holding a substantive visa – whether Tribunal made jurisdictional error in not being satisfied there were compelling reasons for not applying the Schedule 3 criteria – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), cl.820.211(2)(d)

Applicant: HARWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1660 of 2016

Judgment of: Judge Manousaridis

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1660 of 2016

HARWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (Partner visa).

Background

1. The applicant is a citizen of India. He arrived in Australia on 1 December 2008 as the holder of a student visa. The student visa was cancelled on 26 May 2010, but the applicant remained in Australia as an unlawful non-citizen until 21 November 2011 when the applicant applied for a protection visa.

2. On 10 April 2012 a delegate of the Minister refused to grant the applicant a protection visa. On 7 August 2012 the Refugee Review Tribunal (RRT) affirmed that decision. The applicant unsuccessfully applied for judicial review of the RRT’s decision and subsequent appeals to the Federal Court, the Full Federal Court, and High Court were unsuccessful. On 9 April 2014 the applicant requested Ministerial intervention and, on 28 May 2014 the Minister decided not to intervene. The applicant remained in Australia unlawfully from 27 June 2014.

3. On 7 July 2014 the applicant married the sponsor, an Australian permanent resident and, on 18 July 2014, he applied for the Partner visa on the basis of his marriage to the sponsor.

4. On 26 March 2015 a delegate of the Minister refused to grant the applicant a Partner visa. The delegate was not satisfied the applicant met the requirements of cl.820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the applicant ceased to hold a substantive visa more than 28 days before lodging his Partner visa application, and the delegate was not satisfied that compelling reasons existed to waive the Schedule 3 requirements.

5. At the time of application, cl.820.211(2)(d) to the Regulations provided:

   in the case of an applicant who is not the holder of a substantive visa--either:

   (i)the applicant:

   (A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)satisfies Schedule 3 criterion 3002; or

   (ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

Tribunal’s decision

1. The Tribunal referred to the applicant’s not being the holder of a substantive visa at the time of application for the Partner visa and his not entering Australia as the holder of a Subclass 995 visa or special purpose visa. The Tribunal then identified the question it had to consider on the review, namely whether the applicant satisfied the Schedule 3 criteria and if not, whether there were compelling reasons for not applying those criteria.[1]

   [1] CB165, [20]

2. First, the Tribunal considered whether the applicant satisfied criterion 3001. In order to satisfy criterion 3001 the application for the visa must have been lodged within 28 days of the “relevant day”. In the applicant’s case the “relevant day” is 26 May 2010, being the day the applicant last held a substantive visa. The Tribunal therefore found the applicant did not satisfy criterion 3001 because the application for the Partner visa was made on 19 July 2014, some four years after the applicant last held a substantive visa.[2]

   [2] CB165, [21]-[22]

3. Second, the Tribunal considered whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal referred to factors the applicant submitted constituted compelling reasons for not applying the Schedule 3 criteria. These were the applicant and the sponsor being in a genuine and continuing spousal relationship; the applicant’s looking after the welfare and day to day needs of the sponsor’s three children; the sponsor’s “deriving much of her moral and emotional support” from the applicant and was at a “hopeless stage” before meeting the applicant; and that the sponsor and her children “would be put to severe financial hardship” if the visa was not granted to the applicant.[3]

   [3] CB165-166, [25]

4. The Tribunal noted the applicant and the sponsor had been married for nearly two years, and had been living together for about one year; but it did not accept that the existence of a spousal relationship in itself gives rising to compelling reasons not to apply the Schedule 3 criteria.[4] Further, the Tribunal did not accept that the emotional bond the applicant claimed to have with the sponsor’s children constituted compelling reasons not to apply the Schedule 3 criteria.[5] The Tribunal accepted the sponsor may be “emotionally upset” if the applicant were required to go offshore to lodge a partner visa application, but it was not prepared to accept that any emotional response the sponsor may have constituted compelling reasons not to apply the Schedule 3 criteria.[6] Although the Tribunal acknowledged there may be financial problems associated with the applicant going offshore, the Tribunal did not accept that gave rise to compelling reasons not to apply the Schedule 3 criteria.[7]

   [4] CB166, [27]

   [5] CB166, [28]

   [6] CB166, [29]

   [7] CB166-167, [30]

Grounds of application

1. The application filed by the applicant with this court contains three grounds of application. The first ground is:

   The Tribunal erred in making final decision. The AAT adopted harsh approach to judge the application criteria.

2. The applicant, who is not legally represented, made no submissions in relation to this ground. The ground discloses no jurisdictional error. It does not identify the error it is claimed the Tribunal made; and it does not identify the facts and matters on the basis of which it is claimed the Tribunal’s approach was harsh and how such approach amounts to the Tribunal making a jurisdictional error.

3. The second ground is:

   The Tribunal made decision in hurry based on incomplete and unrelated information.

4. The ground does not identify the information on which it is claimed the Tribunal relied and which it is claimed was incomplete or “unrelated”. To the extent the applicant relies on the Tribunal’s having made its decision one day after the applicant appeared before the Tribunal, that by itself does not demonstrate the Tribunal did not consider the applicant’s claims. It is apparent from the Tribunal’s reasons that it considered the matters on which the applicant relied as giving rise to compelling reasons for not applying the Schedule 3 criteria. The second ground, therefore, does not disclose any jurisdictional error.

5. The third ground is:

   The Tribunal did not provide sufficient opportunity to provide the required information.

6. This ground does not identify the information it is claimed was required and which the applicant was given insufficient opportunity to provide. Nor does the ground identify the respects in which it is claimed the applicant was not given sufficient opportunity to provide the information.

7. At the hearing before me the applicant said he told the truth but he was not believed. That does not represent the grounds on which the Tribunal affirmed the delegate’s decision. The Tribunal did not make any adverse credibility findings against the applicant. It accepted his evidence but concluded, for reasons that were reasonably open to it, that the applicant’s evidence and the other evidence before it did not disclose compelling reasons for not applying the Schedule 3 criteria.

8. Ground 3 also does not succeed.

Disposition

1. I propose to order that the application be dismissed.

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

Associate: 

Date:  22 September 2017