Singh v Minister for Immigration

[2017] FCCA 1336

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1336

Catchwords:
MIGRATION – Review of decision of Administrative Review Tribunal – application for partner visa – applicant not in receipt of appropriate visa at time of application – whether compelling circumstances exist to justify waiver of visa criteria – assertion of jurisdictional error in respect of Tribunal’s assessment of compelling circumstances – application does not disclose any ground for jurisdictional error – Tribunal considered all relevant matters and applied jurisdiction appropriately – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 116(1)(b), 474; 476

Migration Regulations 1994, r.1.40A
Federal Circuit Court Rules 2001, r.44.12(1)

Cases cited:
Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
SZFNK v Minister for Immigration & Multicultural Affairs [2006] FCA1601

Applicant: DEEPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 276 of 2016

Judgment of: Judge Brown

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Adelaide

Delivered on: 19 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Singh in person

Counsel for the Respondents: Mr O Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 276 of 2016

DEEPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant, in these proceedings, Deepinder Singh, seeks the issue of a constitutional writ to quash a decision of the Administrative Appeals Tribunal “the AAT”, which affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection “the Minister” not to grant him a Partner (Temporary) (Class UK) visa “partner visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

2. On 8 April 2014, the applicant applied for the partner visa on the basis of his de facto relationship with Ms Imrana Akram, who at the time was a permanent resident of Australia and remains so.  Mr Singh and Ms Akram subsequently married on 4 September 2015. 

3. The applicant is a citizen of India.  He arrived in Australia on 19 September 2008, pursuant to a student visa, which expired on 15 March 2011 but was later extended to 27 June 2012.  Thereafter, he applied for a temporary skilled visa, which was refused on 26 November 2012.  A review to the Migration Review Tribunal, in respect of this refusal, was unsuccessful. 

4. On 4 April 2013, the applicant applied for a protection visa, which was ultimately refused on 13 May 2014.  Accordingly, at the time of his application for the partner visa, which is the subject of these proceedings, the applicant did not hold a substantive visa pursuant to the provisions of the Act. 

5. Mr Singh and Ms Akram met via facebook, after Mr Singh had arrived in Australia and whilst Ms Akram was living in Pakistan.  She arrived in Australia, pursuant to a tourist visa, on 26 February 2013.  Subsequently, she was granted a protection visa, as a dependant of her mother, on 4 October 2013.

6. Mr Singh and Ms Akram physically met a few days after the latter had arrived in Australia. It is their position that they began their de facto relationship a few days after meeting, notwithstanding the disapproval of Ms Akram’s family.  Ms Akram is Mr Singh’s sponsor.  She is a Muslim, whilst Mr Singh is not.

7. The criteria for the grant of a partner visa are set out in clause 820.211(2) of the Migration Regulations 1994 “the Regulations”.  In generic terms, an applicant for a partner visa, who does not hold a substantive visa, must satisfy criteria 3001, 3003 and 3004 of schedule 3 of the Regulations, unless the Minister is satisfied compelling reasons exist for not applying those criteria. 

8. In order to satisfy criterion 3001, Mr Singh would have had to apply for the partner visa within 28 days of his last substantive visa having ceased.  In his case, Mr Singh’s last substantive visa was his student visa, which ceased on 27 June 2012, some 21 months prior to his application for the partner visa.   In these circumstances, it is necessary for Mr Singh to demonstrate that compelling circumstances exist, justifying the waiver of the schedule 3 criteria.

9. On 9 March 2015, a delegate of the Minister declined to grant the applicant a partner visa, as the delegate was not satisfied such compelling reasons existed.  This decision was affirmed by the Tribunal on 6 October 2015, after evidence had been taken from both the applicant and Ms Akram.  This determination led to an application for judicial review, filed in this court on 20 November 2015. 

10. Prior to the determination of this application, the Full Court of the Federal Court was called upon to consider whether it was necessary for the Minister to consider, as a matter of law, any compelling circumstances, relevant to an applicant for a partner visa, which had arisen after the time of the application in question. 

11. In Waensila v Minister for Immigration & Border Protection[1], the Full Court held that the Minister was required to consider compelling circumstances in the context of the particular applicant’s whole situation, which including matters arising up to and including the time of hearing. 

    [1]  See Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32

12. On the basis of the decision in Waensila, the determination of the AAT, dated 6 October 2015, was quashed on the basis of an error arising in the application of its jurisdiction and the matter remitted back to the Tribunal for rehearing, which occurred on 9 August 2016.  It is this decision, which is the subject of the current application before the court. 

13. Relevant to the decision subject to review in these proceedings, it is important to note that the AAT had access to the evidence given by Mr Singh and Ms Akram in the first appeal, which was subsequently quashed.  It was the view of the AAT in the second matter that it was entitled to consider the evidence available from the first hearing.

The decision of the AAT

1. The Tribunal noted that it was not in dispute that the applicant did not hold a substantive visa, at the time of his application and so did not satisfy criterion 3001.[2]  Accordingly, the Tribunal identified the issue for its determination in the following terms:

   “The issue for me to decide in this review is whether there are compelling reasons for not applying the Schedule 3 criteria.”[3]

   [2]  See casebook at page 228 [5] & [7]

   [3]  Ibid at page 228 [8]

2. The applicant provided written submissions and both he and Ms Akram gave evidence before the Tribunal.  This evidence was directed to the nature of the relationship between Mr Singh and Ms Akram and directed to the consequences arising if Mr Singh was compelled to return to India.  In practical terms, if the applicant was not granted the partner visa sought by him, it would mean that he would have to return to India, resulting in his separation from his spouse, whilst he applied for a visa off shore. 

3. In Waensila the Full Court considered the waiver power was:

   “… obviously intended to be available to deal with cases where there were ‘compelling reasons’ for not putting particular applicants to the hardship of having to leave Australia for that purpose [applying for an offshore visa].”[4]

   [4]  See Waensila v Minister for Immigration & Border Protection (supra) at [54]

4. The applicant’s case can be summarised in the following terms:

   ·He and Ms Akram have a close and genuine relationship;

   ·As the applicant is a non-Muslim, but Ms Akram is Muslim, she has been placed under significant emotional pressure, by her family, to divorce the applicant so that she can marry a Muslim;

   ·In these circumstances, if the applicant was compelled to leave Australia, he had grave fears that Ms Akram would not be able to withstand the pressure from her family to divorce him and marry a Muslim, in his absence;

   ·As the applicant currently works fulltime, and Ms Akram only part-time, she would face financial hardship in his absence. 

5. The Tribunal had access to what the applicant and Ms Akram had deposed in the earlier hearing before the Tribunal on 23 September 2015.  In this context, in the mind of the Tribunal, inconsistencies had arisen between what had been deposed by Mr Singh and Ms Akram on 23 September 2015 and more recently on 9 August 2016, particularly in respect of the attitude to and knowledge of Ms Akram’s family as to the nature of the relationship between her and the applicant.

6. Mr Singh informed the Tribunal that Ms Akram had not told her family about the marriage, although they were aware the two were in a relationship.  This was in contrast to earlier evidence, provided by Ms Akram that her parents “had agreed to the marriage with difficulty”.  The Tribunal noted other inconsistencies, particularly whether Ms Akram’s parents could force her to divorce Mr Singh. 

7. In these circumstances, the Tribunal found as follows:

   “Generally I do not have confidence in the evidence of the applicant and sponsor and find neither to be credible witnesses.  The evidence of the applicant directly contradicts the sponsor’s earlier evidence on a critical matter.  The sponsor’s evidence as to whether her parents were aware of the marriage was vague and contradictory in itself.  When I pointed to the clear inconsistency between what she had previously told the Tribunal and what she was telling me, I understood the applicant to be saying that the evidence she had given to the Tribunal previously was purposefully not correct.”[5]

   [5]  See casebook at page 231 at [32]

8. The Tribunal also rejected the submission that a misunderstanding had arisen between it and Ms Akram due to short comings in the interpretation of her evidence.  These matters led the Tribunal to have “serious concerns as to the underlying factual premise of each of the matters” relied upon by Mr Singh as providing compelling reasons for not applying the schedule 3 criteria.[6]

   [6]  Ibid at [34]

9. Notwithstanding these serious concerns, the Tribunal considered each of the matters raised by the applicant.  Firstly, on the basis of the presumption that the applicant and Ms Akram were in a genuine marital relationship, the Tribunal accepted that it was likely a temporary separation, arising as a consequence of Mr Singh having to apply offshore for a partner visa, would be a source of distress and hardship.  However, in all the circumstances of the case, the Tribunal did not consider this reason alone to be compelling in itself. 

10. Secondly, given the Tribunal’s lack of confidence in the claim that Ms Akram’s family do not accept her marriage to Mr Singh, the Tribunal was not convinced that this provided a compelling ground to waive the applicable criteria.  In this context, the Tribunal once again noted inconsistencies in Ms Akram’s evidence, particularly her indication that she could not be compelled to divorce Mr Singh, against her wishes. 

11. Finally, the Tribunal noted that Mr Singh was not currently working, due to visa restrictions.  As such, it was his evidence that he was totally financially dependent on Ms Akram.  In these circumstances, the Tribunal did not accept that there were compelling reasons, relating to his financial provision for Ms Akram, which justified the waiver of the relevant conditions. 

12. For these reasons, the Tribunal found as follows:

    “I have considered each of the matters relied on by the applicant and sponsor.  I find that these matters, neither individually nor cumulatively, are circumstances sufficiently powerful to lead me to make a positive finding in favour of waiving the required criteria.

    I decline to waive the relevant Schedule 3 criteria. It follows that the applicant does not meet the requirements of cl.820.211(2)(d) and therefore does not meet the requirements of cl.820.211(2). In the applicant’s circumstances, this means he does not satisfy the requirements of cl.820.211, and the visa must be refused.”[7]

    [7]  Ibid at page 232 [38]-[39]

The grounds for review

1. The applicant has been self-represented throughout these proceedings.  As a consequence, he has provided the following grounds for review of the relevant decision.

   “1.    I lodged an appeal to the Tribunal to take a fresh look at my partner visa refusal and application was affirmed and lodged an appeal to the Federal Circuit Court of Australia to seek an order to replace old orders.

   2.  Federal Circuit Court of Australia has remitted this decision back to Tribunal to take a fresh look at this matter.

   3.  Tribunal scheduled a hearing for us to attend and we presented our self at the hearing and explained our situation to the Tribunal.

   4.  Tribunal has ignored that fact that there are compelling circumstances in this matter and application was refused and decision form DIBP has been affirmed.

   14.    I would like to appeal to FCC of Australia as per Waensila vs DIBP, my application has been considered as other people in similar circumstances has been considered.

   15.    I would like to appeal to Federal Circuit Court of Australia to seek new orders that would direct AAT to re consider this matter.

   16.    Please find attached decision to get more information.”

2. In written submissions to the court, the Minister has described these grounds in the following terms:

   “These grounds recite the procedural history of the matter, are not particularised and without particulars, they are meaningless.  They fail to identify any legal error, let alone a jurisdictional error.”[8]

   I accept this submission.

   [8]  See First Respondent’s Submissions at [25]

The legal principles applicable

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Administrative Appeals Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Administrative Appeals Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[9] 

   [9]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[10]

   [10]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[11]

   [11]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

11. In Minister for Immigration & Citizenship v Li[12] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.  As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.

    [12]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

Discussion

1. As indicated above, on judicial review, the court is prevented from conducting a rehearing of the merits of the particular application before the Tribunal concerned.  The court’s sole function is to ascertain whether there is any jurisdictional error relating to the determination in question.  If there is such an error, it will lead to the vitiation of the decision concerned, because the relevant jurisdiction, conferred upon the Tribunal concerned, has not been exercised. 

2. This function is different in nature to a rehearing of the case concerned, in which the appellate body is entitled to substitute its own findings for those of the original decision maker or exercise any discretion conferred on that decision maker in a different way.

3. The application in question has not isolated any matters said to constitute a jurisdictional error.  Rather, Mr Singh has reiterated the procedural history of his case and asked the court to reconsider his case.  In my view, this is tantamount to a request for merits review, which is not open to this court. 

4. In my view, the Tribunal properly exercised the jurisdiction conferred upon it.  It reached the conclusion that there were no compelling reasons not to apply the schedule 3 criteria, so far as Mr Singh was concerned.  In my view, the Tribunal properly considered the applicable legal and regulatory matters applicable to this issue and reached a decision, within the jurisdiction conferred upon it. 

5. In particular, the Tribunal considered each of the applicant’s claims that compelling circumstances existed which militated in favour of the Tribunal exercising its jurisdiction in way which would not require Mr Singh to have to apply for a partner visa off shore.  In my view, it cannot be said that any aspect of the Tribunal’s decision was vitiated by any aspect of legal unreasonableness or can be characterised as being irrational and illogical.  The assessment of Mr Singh and Ms Akram’s credibility was an instant of the Tribunal’s fact finding jurisdiction. 

1. The Tribunal found them not to be credible witnesses.  It doubted the veracity of a number of aspects of what they asserted were the compelling circumstances, which would arise if Mr Singh had to leave Australia.  In particular, it had cause to doubt Ms Akram would be subject to pressure to divorce Mr Singh and remarry or would be subject to financial privations of an exceptional kind.

2. I appreciate that Mr Singh is not legally qualified.  As such, he is under a significant level of disadvantage in any attempt to discern a potential jurisdictional error pertaining to his case.  However, as Madgwick J indicated in SZFNK v Minister for Immigration & Multicultural Affairs[13] said:

   “There is no obligation on a court, that I am aware of, independently to consider for itself a self-represented litigant might, despite the inadequacies of presentation of his or her position, have a case for the court’s intervention … on an ordinary hearing it is for an applicant, self-represented or not, to make out his or her case.”

   [13]  See SZFNK v Minister for Immigration & Multicultural Affairs [2006] FCA1601 at [4]

3. In any event, after having considered the reasons of the Tribunal, I can discern no jurisdictional error in the decision concerned.  In my view, the Tribunal complied with its obligations to accord the applicant natural justice.  He was invited to appear before the Tribunal and was given an opportunity to provide evidence and submissions. 

4. In particular, he was advised that the Tribunal would take account of apparent inconsistencies arising in the evidence between the two Tribunal hearings relevant to this matter.  In this context, the applicant was given the opportunity to comment upon these inconsistencies.

Conclusions

1. In all these circumstances, I have reached the conclusion that there is no discernible legal error arising in the decision of the Tribunal under review.  Accordingly, the application must be dismissed. The Minister seeks costs.  Costs should follow the event.  I will make the costs order as sought.  The relevant schedule to the court’s rules fixes costs in the sum of $7,206.00 for a proceeding concluded at a final hearing.[14]  I will make an order for costs in this sum.

   [14] See Federal Circuit Court Rules 2001 Schedule 1 Part 3 Division 1

2. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         19 June 2017