FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1331 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Partner (Temporary) (Class UK) visa – the Tribunal did not have regard to the material the subject of the certificate in its adverse determination of the applicant’s application – no practical injustice in the determination of the application in the present case – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5BC, 5F, 375A, 376, 476 Migration Regulations 1994, reg.1.15A, cl.820.211, 820.221, 820.223 of Schedule 2, Schedule 3, Schedule 4 |
| Applicant: | HARDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 379 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 19 June 2017 |
| Date of Last Submission: | 19 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie Dobbie & Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Leave to the applicant to rely upon the amended application filed 16 May 2017.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 379 of 2017
| HARDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 January 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant is a citizen of India and came to Australia in 2009 on a vocational education and training sector (subclass 572) student visa and made an unsuccessful application for a temporary graduate (subclass 485) skilled visa. The applicant applied for the current visa on 25 November 2013 on the basis of his relationship with his sponsor.
The application was initially refused in April 2015 because the delegate found the applicant did not meet the criteria in Schedule 3 to the Migration Regulations 1994 (“the Regulations”). On 8 November 2015, a differently constituted Tribunal remitted the matter back to the delegate with the direction that the applicant met the following criteria for a (Subclass 820/801) Partner (Temporary) visa namely, cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.
The delegate’s decision
On 1 December 2015 the delegate identified the relevant criteria and in relation to the financial aspects found that the financial arrangements with the sponsor were not consistent with having a spousal relationship. The delegate referred to the nature of the household…
Keep reading for free
Create a free CaseChat account to read Singh v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] FCCA 1331
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal erred in its assessment of Mr. Singh's eligibility for a partner visa. Specifically, the court was asked to consider whether the Tribunal's findings regarding the genuineness of the relationship, the sharing of financial responsibilities, the involvement of family members, and the paternity of a child were unreasonable, irrational, or arbitrary. Furthermore, the court had to determine if the Tribunal failed to exercise its jurisdiction or accord procedural fairness, particularly in relation to the use of an invalid certificate and the lack of opportunity for Mr. Singh to make submissions on its validity. The court also considered whether the Tribunal failed to conduct the required review of the evidence before it.
Judge Street found that the Tribunal's decision was infected with jurisdictional error. The Tribunal's reasoning was found to be unreasonable and irrational in several respects, including its subjective views on the timing of wills, its assessment of financial arrangements, and its expectations regarding family involvement. The Tribunal's doubts about the paternity of the child and its requirement for Mr. Singh to apply for a visa to travel to India, despite his ineligibility, were also deemed unreasonable. The court also held that the Tribunal failed to accord procedural fairness by relying on an invalid certificate without providing Mr. Singh a reasonable opportunity to challenge its validity or disclose its contents. The Tribunal's failure to properly regard the evidence before it, leading to misrepresentations of Mr. Singh's statements, further indicated a failure to conduct the required review.
The court ordered that the decision of the Tribunal be quashed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The grounds in the amended of application are as follows:-1. The decision of the Second Respondent is unreasonable, irrational or arbitraryParticulars:(A) The decision of the Second Respondent is unreasonable, irrational or arbitrary:(i) In finding that the Applicant did not satisfy subclause 820.211 (2)(a) and clause 820.221 of Part 820 of Schedule 2 the Migration Regulations 1994 ('the regulations'), the Tribunal:(a) found that the wills made by the Applicant and his spouse, in December 2013, 'were prepared solely for the purpose of presenting evidence to Immigration and do not represent the couple's desire to share their resources', because of the Tribunal's subjective view that 'if they genuinely wanted to nominate each other as beneficiaries, the wills would have been prepared when they claim to have commenced the committed relationship and not at the time when the applicant was making the visa application'. (at [21])(b) despite finding that 'the applicant pays the rent and the sponsor pays for groceries and they also pay for some other expenses', found that the financial arrangements that were made did not 'represent the sharing of financial responsibilities and the pooling of resources'. (at [24])(c) required that the Applicant and his spouse had to establish meaningful relationships with their respective family members in order to be satisfied that the Applicant and his spouse viewed their relationship as a long term relationship. (at [26])(d) required that the Applicant and his spouse had to show that they made more effort to involve their respective family members in their marriage in order to be satisfied that the Applicant and his spouse viewed their relationship as a long term relationship. (at [27])(e) found that the length of the claimed committed relationship from late 2011 could equally be explained by the lengthy processing of the Applicant's visa application. (at [29])(f) found, in relation to the miscarriage suffered by the Applicant's spouse, and her pregnancy at the time of hearing, that given its concerns 'outlined elsewhere' in its decision, it was 'not convinced that the applicant is the father of the child in relation to either pregnancy'. (at [30])(g) Required the Applicant to apply for a visa to travel to India with the sponsor. despite the fact that the Applicant was not eligible to be granted a visa to allow him to travel outside of Australia and re-enter Australia while his partner visa application was being determined, and despite the requirement that he be in Australia at the time a decision is made on the partner visa application.(h) Imposed its own view of how the Applicant should have conducted himself in relation to his wife's pregnancy and her subsequent miscarriage.(ii) Each of the above is unreasonable, irrational or arbitrary, such that the decision of the Tribunal is infected with jurisdictional error.3. The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairnessParticulars:(A) The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness.(i) In finding that the Applicant did not satisfy subclause 820.211 (2)(a) and clause 820.221 of the regulations, the Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness because:(a) the Tribunal acted on an invalid certificate dated 11 February 2015 purportedly issued pursuant to s375A of the Act, thereby following a process contrary to law; and or(b) the Tribunal only disclosed the existence of a certificate to the Applicant at the hearing, and failed to give the Applicant a reasonable opportunity to make submissions on the validity of the certificate if he so chose; and or failed to give the Applicant at least a reasonable opportunity to seek disclosure of any matter contained in the document, or the information.4. The Tribunal failed to conduct the review required by the ActParticulars:(A) The Tribunal failed to conduct the review required by the Act because it failed to have proper regard to the evidence before it; for example:(i) The Tribunal stated at [271 of its decision:'The applicant then said that his parents had the money to travel to Australia but they did not want to come to Australia because they thought they would arrange a big ceremony in India.'However, that is not what the Applicant said. The Applicant said:'But they don't want to come in Australia, even they don't want to come anywhere. They never been-even they don't have a passport here.''My parents don't want to come here, that's why I didn't apply for them-I didn't force them'.(ii) The Tribunal further stated at [271 of its decision:'The applicant told the tribunal he made no effort to obtain the passport for the sponsor and no effort to travel to India to introduce her to his family. He said the sponsor is unwilling to travel overseas. The applicant suggested he has no visa to travel but he could have applied for a travel visa at anytime.'However, the Applicant could not apply for a visa to travel, as he was not the holder of a visa that was of a visa class that allowed him to travel or to make him eligible to be granted a visa to travel outside of Australia.(iii) By failing to have regard to the evidence before the Tribunal, it failed to conduct the review required by the Act.