Singh v Minister for Immigration

[2020] FCCA 2243

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2243

Catchwords:
MIGRATION – Partner visa – where no genuine and continuing relationship – where Minister questioned authenticity of relationship – where evidence not sufficient to support granting of visa – where applicant sought merits review – where, at time of Tribunals decision, relationship had ended – grounds of review wholly unparticularised – brevity of reasons not proper ground for review – where no useful result could ensue from further hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474, 476.

Cases cited:

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: SATVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1907 of 2018

Judgment of: Judge A. Kelly

Hearing date: 11 August 2020

Date of Last Submission: 11 August 2020

Delivered at: Melbourne

Delivered on: 17 August 2020

REPRESENTATION

Applicant: In person

Solicitor advocate for the Respondents: Mr C van der Westhuizen

Solicitors for the Respondents: DLA Piper

ORDERS

1. Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.

2. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. The application dated 2 July 2018 be dismissed.

4. The applicant pay the costs of the first respondent fixed at $6,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1907 of 2018

SATVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 2 July 2018 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 12 June 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Partner (Temporary) (Class UK) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).

2. The application should be dismissed.  In summary, there was no error in the conclusion of the Tribunal that the applicant was not in a spousal relationship with his sponsor at the time of decision.  Indeed, the applicant admitted this to be the case.  The applicant could not satisfy the essential criterion for the grant of the visa.  The nine grounds of review were wholly unparticularised and devoid of merit.  The applicant had taken no steps to file any evidence or submissions explaining the basis on which his grounds of review had any merit.  

Background

1. The applicant, a male Indian citizen aged 31 years, first arrived in Australia on 15 April 2009 holding a Student (subclass 572) visa.  In the period March 2010 – August 2014, the applicant departed from, and returned to Australia as the holder of a series of student visas.

2. On 21 August 2014, the applicant applied for the visa, doing so on the basis that he was in a relationship with an Australian permanent resident.

3. On 6 August 2015, a delegate of the Minister requested that the applicant supply further information to support the visa application.

4. In response to the letter, the applicant filed a range of material in support of his application.  This included joint bank account statements, joint gas and electricity bills, two witness statements, a relationship statement by both the applicant and his sponsor, photos with friends and together, a statutory declaration as shared tenants, a will of both parties, a water bill and receipt for the purchase of an item of electrical equipment.

Delegate’s decision

1. On 25 November 2016, a delegate of the Minister made a decision to refuse the application.  While accepting some of the applicant’s material, including that the parties had been legally married, the delegate ultimately found that the applicant was not the spouse of his sponsor. 

2. The delegate further found the following:

   a)while the bank balance letters show a joint accounting credit, there was little documentary evidence showing he was contributing to the account;

   b)the account statements of 31 December 2015 to 30 June 2016 also showed no evidence of shared household expenses;

   c)while a statutory declaration had been provided to support the applicant’s claim of living with the sponsor, it did not provide dates of the applicant’s residency period;

   d)although a tenancy agreement had been entered into with joint names, it was only signed by the applicant and not the sponsor;

   e)the documentation in support of the visa application was limited and did not accurately reflect the duration in which the marriage;

   f)although photos of the applicant and his sponsor in the company of friends were submitted, the lack of any additional supporting evidence gave them little weight;

   g)evidence provided of the parties’ amended wills, did not identify the witnesses.  The delegate was inclined to give them little weight in support of a genuine and continuing relationship as those testamentary intentions could be changed at any time;

   h)the delegate found that “you and your sponsor have provided limited evidence that you have combined your affairs significantly since the time you were married . . . Nor have you changed the terms of your superannuation, to show that you see the relationship was a long-term one”.

3. The delegate concluded that the criteria to grant a visa were not met.

Tribunal’s decision

1. On 9 December 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. 

2. On 14 March 2018, the Tribunal sent the applicant’s representative a “request for information”.  The Tribunal sought further evidentiary material upon which the applicant may seeks to rely in appealing the Minister’s decision.  The applicant did not provide any further evidence to the Tribunal in response to that request.

3. On 1 May 2018, the applicant was invited by the Tribunal to attend a hearing scheduled for 31 May 2018.  He was again invited to, but did not, provide any further information or documents for the purposes of the review which he sought.  The applicant attended that hearing, doing so with the assistance of his representative and an interpreter.  In the course of that hearing, the applicant gave evidence that he no longer lived with the sponsor and that she had left him shortly after his visa application had been refused by the delegate on 25 November 2016. 

4. On 12 June 2018, the Tribunal made a decision to affirm the delegate’s decision. In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons).

5. The Tribunal correctly identified that the issue arising for consideration was whether the applicant continued to be in a relationship with his sponsoring partner: [3]. The Tribunal found that at the time of the decision, the applicant was no longer in a relationship with his sponsor. It made this finding on the basis of, amongst other things the applicant’s admission that he and his sponsor no longer lived together: [4], [9]. Having considered, and found, that no relevant exception applied, the Tribunal found that the applicant did not meet the criteria for the grant of the visa: [8]-[9]. The Tribunal affirmed the delegate’s decision.

Procedural history

1. On 2 July 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.

2. On 10 August 2018, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the no arguable case for the relief sought is raised.

3. On 30 October 2019, orders were made, by consent, listing the matter for final hearing.  Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions; however, none of those opportunities were taken.

4. In those circumstances, the outline of submissions filed on behalf of the Minister were responsive to the matters set out in the application.

5. When the matter was called on for hearing, the interpreter who had been booked by the court to assist the applicant was not present.  Enquiries had to be made to ascertain the interpreter’s whereabouts.  Although it was sufficiently clear that the applicant had a strong command of spoken English, he wished for the hearing to be conducted with the assistance of an interpreter.  The matter was adjourned until the interpreter’s arrival.

6. When the applicant was asked to identify the basis upon which he contended the Tribunal’s decision was tainted by jurisdictional error, he responded that the delegate’s decision had, in effect, spelled the end of his relationship and that this had affected him and his whole family. 

7. It was only when the applicant was asked whether he had anything further to say that he stated he sought further time in which to engage a lawyer.  There was no evidence before the court to support the oral application.  As I explained to the applicant he had consented to orders being made in October 2019 affording him an opportunity to file further evidence and submissions.  I observed that the applicant had given no notice of his intention to seek an adjournment and provided no adequate reason why such an adjournment should be granted.  He replied that his financial circumstances had deteriorated and then suggested that he was not coping financially or mentally as a result of the current pandemic.  I responded that self-represented litigants appeared in this court on a daily basis and that not having legal representation was not always an adequate basis upon which to seek an adjournment.  In all of the circumstances of this case, I was not satisfied there was any merit the belated application to adjourn the final hearing of the proceeding.

Judicial review

1. If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review.  A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2]  In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]  Whether it should do so is a separate issue.

   [1] Act, s 474(2).

   [2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [3] Act, s 476(2).

2. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

3. The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[5] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6]  Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.

   [5]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).

   [6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Consideration

1. As the applicant was self-represented before me, I have examined the material contained in the court book and in particular, the decisions of each of the delegate and Tribunal and the matters in the application for judicial review.

2. The applicant’s supporting affidavit contained three statements affirmed by the applicant:

   I came to Australia on student visa and applied for 820 subclass.

   As I was not satisfied with the decision made by DIBP, I applied for the Merit review of my application and in response they made a jurisdiction error but I am not satisfied with the decision of AAT that’s the reason I want lodged my application in Federal Circuit court.

   I attaced (sic) the copy of AAT decision marked A.

3. The affidavit does not provide any support to any grounds of review.

4. The application contained nine grounds of review which are wholly unparticularised.   The opportunity to file an amended application was not taken.

Ground 1 – procedural centres

1. Ground 1 reads:

   [The] Member failed to consider that the Department of Immigration and Border Protection did not accord to the applicant procedural fairness and natural justice.

2. Ground 1 is devoid of merit.  It was not the function of the Tribunal in conducting a de novo review of the merits of the decision to determine whether the Department had failed to accord him procedural fairness.

Ground 2 – erroneous decisions

1. Ground 2 reads:

   Member failed to provide the proper decisions and made a jurisdictional error and hence my matter must be looked after again (sic) and proper detailed decision must be provided.

2. I am satisfied the Reasons demonstrate that the Tribunal properly considered the issue arising on review.  It correctly identified the applicable provisions of the Act and regulations and applied them to the evidence before it including that the applicant accepted he was no longer in a spousal relationship with the sponsor.  The Tribunal also considered and found that no available exception applied to the applicant’s case.  The applicant’s complaint that the Tribunal did not provide a detailed decision is without substance.  The brevity of the decision is explained by the facts and circumstances of the case including his admission that he was no longer in a spousal relationship.

Ground 3 – family violence

1. Ground 3 reads:

   The tribunal member refused my case as according to him I was suffering from the family violence which was not even near to my case (sic). The member did not pay heed towards my case.

2. This ground is misconceived.  The Tribunal expressly found that the applicant did not claim to have been a victim of family violence: [5]. Otherwise, I discern no reason for thinking that the merits of the applicant’s case were not properly or adequately considered at the de novo hearing, particularly in circumstances where, at no stage had the applicant provided any information or documentation and despite being afforded two opportunities to do so before the hearing itself.

Ground 4 – decision discloses error

1. Ground 4 reads:

   The decision of the member clearly depicts the jurisdiction error and this must be overlooked again according to law (sic).

2. This unparticularised ground of review is without substance. 

Ground 5 – use of untested evidence

1. Ground 5 reads:

   The Member erred in dismissing the applicants review application by relying on hearsay evidences obtained by the department of immigration which was not tested and put to the applicant (sic).

2. Although the Tribunal is not bound by the rules of evidence and thus not prevented from relying upon hearsay evidence, on a fair reading of the Reasons, it is clear that the Tribunal relied upon the applicant’s direct evidence that he was no longer in a spousal relationship with his sponsor.

Ground 6 – failure to consider merits

1. Ground 6 reads:

   The Member failed to consider that each case have its own facts and merits and ought to be considered separately and not as a group (sic).

2. Contrary to this ground of review, the Tribunal’s decision demonstrates that it considered the merits of the applicant’s case. 

3. In doing so, the Tribunal found correctly that he could not satisfy the criteria for the grant of the visa in circumstances where he no longer claimed to be in a partner relationship and did not claim to satisfy any of the alternative criteria. The decision reached by the Tribunal was the only decision legally open to it.  The Reasons do not reveal any failure to consider the merits of the applicant’s case.

Ground 7 – procedural fairness

1. Ground 7 reads:

   The member erred in coming to the conclusion and no opportunity was given to provide the evidences (sic).

2. This ground of review has no merit.  As noted, on two occasions before the hearing the Tribunal invited the applicant to furnish any further information for its consideration on the de novo review.  Further, apart from the failure to respond to either of those invitations, at no stage in the 18 month period between lodgement of the application in 2016 and the hearing was any opportunity taken to provide “evidences”.  Further, the applicant had been notified of, and attended, the hearing.

Ground 8 – insufficient time

1. Ground 8 reads:

   Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact (sic).

Ministers subs:

1. I agree in the Minister’s submission that there is nothing to suggest the applicant requested any extra time, or that such extra time could have had any utility in the circumstances of this case.  Particularly is that so in the face of the applicant’s admission that he was no longer in a relationship with his sponsor.  On any view, the applicant had been afforded more than sufficient time to advance the merits of his case before the Tribunal.  Having been afforded those opportunities, they were not taken.  The Tribunal was not to be criticised on that account. 

Ground 9 – an arguable case

1. Ground 9 reads:

   The appellant’s application clearly raises an arguable case.

2. I disagree. 

S 376 certificate

1. As model litigant, the solicitor advocate for the Minister drew attention to the fact that a certificate given under s 376 of the Act which had been notified to the Tribunal was not disclosed to the applicant and that this amounted to a breach of the Tribunal’s implied obligation to afford him procedural fairness by making such a disclosure.  

2. It was correctly submitted that, for such a breach to constitute jurisdictional error, the breach must give rise to a “practical injustice” in the sense that the breach must result in the denial of an opportunity to make submissions, and that denial must be material to the Tribunal’s decision.  In circumstances where the only decision which was legally available to the Tribunal was to affirm the decision under review I am not satisfied that the applicant had suffered any practical injustice.  For that reason also, there is no realistic possibility that the Tribunal’s decision could have been any different had such disclosure been made.

3. Were it is necessary to decide the issue, I would have concluded that relief should be refused in the Court’s discretion on the basis of futility. No useful result could ensue on remittal of this matter to the Tribunal. As the applicant, on his own evidence, could never satisfy the criteria for the grant of the visa, and no exceptions to the criteria were in issue, the Tribunal would be bound to affirm the decision under review.

Conclusion

1. None of the grounds of review being of any merit, and no other error being apparent from my examination of the materials comprising the court book or Reasons, the application should be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly

Associate:

Date: 17 August 2020