Singh v Minister for Immigration

[2017] FCCA 707

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 707

Catchwords:
MIGRATION – Application for Partner (Temporary) (Class UK) visa – where Schedule 3 criteria not met – whether there were compelling reasons for not applying Schedule 3 criteria – Tribunal found no compelling reasons not to apply criteria – Tribunal’s decision not affected by jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl.820.211(2)(d)(ii); Schedule 3, cll.3001, 3003, 3004

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Applicant: SURMUKH SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 860 of 2016

Judgment of: Judge Jarrett

Hearing date: 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Brisbane

Delivered on: 11 April 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr McLeod

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 20 September, 2016 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 860 of 2016

SURMUKH SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 25 August, 2016 that affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Partner (Temporary) (Class UK) visa.  The applicant seeks that the application for review be remitted to the Tribunal to be determined according to law.

2. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.

3. Despite directions permitting the applicant to file an amended application and written submissions in support of his case, he has not done so.  I have written submissions from the first respondent to which I have had regard.  I also have the benefit of oral submissions from the applicant and the first respondent.

Background

1. The applicant is a citizen of India.  He first arrived in Australia on a student visa on 23 July, 2009 and his last substantive visa ceased on 12 October, 2011.  He has subsequently remained in Australia on various bridging visas.

2. On 24 January, 2014 the applicant lodged an application for a Partner (Temporary) (Class UK) visa.  Certain documentation accompanied his application.  The applicant’s sponsor was his wife, Ms Keshnika Kumar.  On 25 March, 2014 the applicant and Ms Kumar separated on a permanent basis. 

3. On 27 August, 2014 a delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied that the applicant was the spouse of his sponsor, Ms Kumar, and determined that the applicant did not meet the requirements of cl.820.211(2)(a) of the Migration Regulations 1994 (Cth).

4. The applicant sought review of that decision by the Tribunal.  He appeared before the Tribunal on 12 July, 2016 gave evidence in support of his application for review and was represented by a migration agent.

5. By its decision dated 25 August, 2016 the Tribunal affirmed the delegate’s decision, namely, not to grant the applicant a visa.

6. To succeed in his application, Mr Singh needed to satisfy the criteria specified for the grant of the subclass 820 visa in Schedule 2 to the Migration Regulations. One criterion, to be satisfied at the date of application for the visa was that Mr Singh satisfied Schedule 3 criteria 3001, 3003 and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria: cl.820.211(2)(d)(ii) in Schedule 2 to the Migration Regulations. Each of the specified criteria needed to be satisfied.

7. The Tribunal expressly identified the relevant issues to be determined on the review application as:

   22.    It follows that the issues for the Tribunal to determine are:

   Schedule 3 criteria

   (a)     Does Mr Singh meet the Schedule 3 criteria?; and, if not,

   (b)     Are there compelling reasons for not applying the Schedule 3 criteria?, and, if so,

   (c) Was Mr Singh the spouse of Ms Kumar at the time of the visa application, that is:

   (i) were Mr Singh and Ms Kumar validly married1?; and

   (ii)     were the other requirements for a spousal relationship met2?, and, if so,

   (d)     Did the clause 820.211 spouse criteria continue to be met at the time of decision (clause 820.221(1)) or does Mr Singh satisfy any of the exceptions to this requirement?, that is:

   (i) Is Mr Singh taken to have suffered family violence?, that is:

   I.   Has there been a judicially determined claim of family violence?; or

   II.     Has there been a non-judicially determined claim of family violence?; and, if so,

   III.     Is the Tribunal satisfied that Mr Singh has suffered relevant family violence?; or, if not,

   IV.     Has a valid opinion of an independent expert been given that Mr Singh has suffered relevant family violence?

   (clause 820.221(3)(b)(i))

   or

   (ii)     Does Mr Singh meet either of the other exceptions?

   (footnotes omitted)

8. Relevantly, criterion 3001 in Schedule 3 to the Migration Regulations provided:

   3001

   (1)     The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   …

   (c) if the applicant:

   (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)     entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)    the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   …

9. The Tribunal correctly noted that Mr Singh last held a substantive visa (a student visa) on 12 October, 2011. Relevantly, the present visa application was lodged on 24 January, 2014. Consequently, the Tribunal held, correctly, that Mr Singh’s present visa application was made more than 28 days after the relevant day – the day on which he last held a substantive visa (12 October, 2011). It followed, therefore, that criterion 3001 was not met at the time of the visa application. However, the Minister could nonetheless grant the applicant his visa if, amongst other matters, the Minister was satisfied that there were compelling reasons for granting the visa concerned: cl.820.211(2)(d)(ii) in Schedule 2 to the Migration Regulations.

10. The Tribunal considered the question of whether there were compelling reasons for not applying the Schedule 3 criteria. It correctly instructed itself as to the law when it said:

    11.    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] FCAFC 77 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.

    12.    According to the Macquarie Dictionary ‘compel’ or ‘compelling’ means ‘to force or drive, especially to a course of action’.  In the context of r.1.20J of the Regulations, the Full Court of the Federal Court in Babicci v MIMIA (2005) 141 FCR 285 at [24] noted that:

    there are… shades of differences between the various dictionary definitions of “compelling”.  But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.

    13.    Although these comments were made in the context of the term ‘compelling circumstances’ in r.1.20J, the Tribunal considers them relevant to the issue presently before it.

    14.    The Tribunal is, of course, obliged to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence as a whole whether there are compelling circumstances: MZYPZ v MIAC [2012] FCA 478 (Bromberg J, 9 May 2012) at [12].

11. Mr Singh’s case about the existence of compelling circumstances turned on the following propositions:

    a)he could not leave Australia to apply for the visa offshore when he did because he did not want to leave Ms Kumar;

    b)Ms Kumar did not want him to leave Australia because of a concern about who would support Ms Kumar financially and socially if he was away;

    c)even though he had left Australia in 2013 to visit his ill father Ms Kumar was not able to live without him for four or five days;

    d)Ms Kumar could not survive without him: she could not work, she was on a disability support pension and he was the only person supporting her at that time;

    e)Mr Singh supported Ms Kumar financially because he earned income driving taxis which he gave to, or shared with her;

    f)Mr Singh also supported Ms Kumar financially because his friends were willing to give him money which he could then give to Ms Kumar, but they would not be prepared to give money to Ms Kumar directly; and

    g)they would only give him money or Ms Kumar money directly if he was in Australia. 

12. The Tribunal brought to Mr Singh’s attention that at the time of lodging his visa application he did not have any right to work in Australia, so financially there was no difference to him remaining in Australia or leaving Australia for the purposes of making an offshore application for the relevant visa.  The Tribunal asked Mr Singh if there was any other reason for not being able to lodge the visa application offshore. 

13. Mr Singh told the Tribunal that at that time he lodged the visa application he was not working so he was doing everything at home, helping Ms Kumar drop her children to school and picking them up and doing all the moving and cleaning when they moved house at that time.

14. Mr Singh told the Tribunal that following an argument he moved out of the home he shared with Ms Kumar on 26 March, 2014.  He went to one of his friend’s places and he has not lived with Ms Kumar and her children since then.  However, they have had contact with each other, and they are currently awaiting their final divorce order.

15. Mr Singh provided to the Tribunal statutory declarations from a psychologist and medical practitioner to the effect that he was suffering from depression as a result of family violence to which he claims he was subject when living with Ms Kumar. 

16. The Tribunal records:

    37.    Just prior to the end of the hearing, the Tribunal indicated it would be taking a short break and advised Mr Singh that if there were any further matters that he wished to raise, he should let the Tribunal know after the break.  Mr Singh’s agent told the Tribunal that during the break they would clarify with Mr Singh as regards the Schedule 3 matters.  Upon resumption of the hearing, Mr Singh reiterated that the relationship (with Ms Kumar) was genuine and it broke down in March (2014).  Mr Singh’s agent then submitted that as already canvassed, Mr Singh believes the Schedule 3 criteria should be waived in that when Mr Singh went to India (to visit his sick father in 2014) and had to return and was not able to stay the period he expected, it stayed in his mind that Ms Kumar missed him.  It was not a case of missing him emotionally (and that he has already told the Tribunal about the financial matters), but he cared for her children as a husband.  Mr Singh then stated that a husband should be around for his kids and wife, not only financially, but helping (his wife) mentally as well.  Mr Singh’s agent stated that Mr Singh felt a compelling need to have to be there physically to care for his wife and her children.  Mr Singh told the Tribunal that Ms Kumar was not 100% capable of looking after her children.  It was his responsibility to wake them up early in the morning, ironing their clothes, making their lunch, dropping them to school and picking them up in the afternoon.  He stated that even Ms Kumar’s sister and mother did not ever do that unless he and Ms Kumar were both at the hospital when Ms Kumar was in hospital.  Mr Singh stated that sometimes he even had to leave the hospital and pick up her children and take them to the hospital.  The Tribunal put to Mr Singh that whilst that it was understandable that it was desirable and advantageous for Mr Singh to assist with the matters explained, Ms Kumar had been separated for some years and had had care of her children by herself prior to meeting him.  Mr Singh stated that Ms Kumar had lived next door to her ex-partner and her mother-in-law looked after them and her children were not going to school at that time.  The Tribunal indicated that it had noted what Mr Singh had stated and would consider whether that amounted to compelling reasons to waive the Schedule 3 criteria.  Mr Singh then told the Tribunal that at that time he used to obtain money from his parents and his friends.  The Tribunal queried why those arrangements could not continue if Mr Singh left Australia temporarily.  Mr Singh in response stated that Ms Kumar would not 100% be able to look after her children.  Mr Singh also stated that his friends would not give Ms Kumar money but would only give money to him if he was here.

17. The Tribunal expressed its conclusions between paragraphs [38] and [48] of its reasons for decision.  It concluded that:

    a)Ms Kumar was in receipt of a disability support pension prior to the inception of her relationship with the applicant and she remained on the pension after their marriage and did not advise Centrelink of the change in her relationship status (reasons at [39]);

    b)the Tribunal did not accept that a desire not to lose the additional funds from the applicant’s taxi driving amounted to a compelling reason to waive the Schedule 3 criteria (reasons at [39]);

    c)it was not unreasonable to expect couples/individuals to modify their lifestyle, living standards and arrangements in circumstances such as the applicant’s where a visa is being sought, and can often cause a financial impact (reasons at [39]);

    d)Ms Kumar had an alternative (or additional) source of income (from the disability support pension) and as a consequence the Tribunal was not satisfied that the lack of any additional monies from sources associated with the applicant, amount to compelling reasons for not applying Schedule 3 criteria, should the applicant leave Australia (reasons at [39]);

    e)although accepting the applicant and Ms Kumar would have preferred to stay with each other, the Tribunal was not satisfied that a desire to not be separated by making an offshore application, constituted a compelling reason (reasons at [40]);

    f)did not consider that a lack of knowledge of the legislation or its implications amounted to a compelling reason for not applying the criteria (reasons at [41]);

    g)the applicant’s reasons for not lodging the visa application on 13 January 2014 were immaterial because the visa he held up to that date was not a substantive visa (reasons at [42]);

    h)it was not satisfied that other arrangements could not have been made for the care of Ms Kumar’s children or household chores and expressly noted that Ms Kumar had managed the care of the children prior to the inception of the relationship with the applicant and after the relationship had broken down (reasons at [43]); and

    i)it did not consider the applicant’s evidence that he was subject to violence from Ms Kumar and that, as a consequence, he had been impacted by depression constituted a compelling reason to waive the Schedule 3 criteria (reasons at [44]).

The grounds of review

1. The applicant relies upon two grounds of review, namely:

   The Tribunal, as per the ‘ Decision Record ‘ dated 25 August 20 16 Case# 141 5126 DI BP Ref CLF2014/ 11894, in the review of a decision to refuse to grant the application for a Partner visa under Section 65 of the Migration Act 1958, and in particular whether there were compelling reasons not to apply the Schedule 3 criteria, made a jurisdictional error, in that:-

   1.  The Tribunal failed to give proper consideration to relevant material before it;

   Particulars:-

   (a) The Tribunal concluded at paragraph [43] that it did not accept that “Mr Singh’s desire to remain in Australia to assist in looking after Ms Kumar ‘s children and/or concerns for their welfare amounts to compelling reasons.  “

   i.  The Tribunal has failed to give adequate consideration and weight to the applicant’s evidence regarding his parental responsibilities of the sponsor’s children, for example those listed at paragraph [37).

   ii.  The Tribunal has failed to give adequate consideration and weight to the applicant’s evidence regarding the attachment he shared with the children.

   (b) The Tribunal concluded at paragraph [39] that it did not accept “that a desire not to lose the additional funds from Mr Singh’s taxi driving amounts to compelling reasons to waive the Schedule 3 criteria”

   i.  The Tribunal has failed to give adequate consideration and weight to the applicant’s evidence regarding his role in providing financially for the sponsor and her children.

   (c) The Tribunal neglected to consider the duration of the relationship as amounting to a compelling reason to waive the Schedule 3 criteria.

   2.  The Tribunal’s decision is irrational or unreasonable.

   (a) Whilst the Tribunal asked questions of the applicant so as to ascertain information to consider whether compelling reasons exist that warrant the waiver of the Schedule 3 criteria, the Tribunal never offered the Applicant an opportunity to postpone the matter in order for him to gather further information and material on this point.  Given that the Applicant’s material suggests that he was not aware that this would be a factor, let alone the major determining factor of the case, it was unreasonable to make a decision without first providing this opportunity.

2. Neither of these grounds are made out.

3. The Tribunal gave active and adequate consideration to Mr Singh’s evidence and arguments regarding his parental responsibilities towards Ms Kumar’s children. The Tribunal was aware and recorded in its reasons, that one of Mr Singh’s concerns was the responsibility he felt he had towards Ms Kumar’s children. At paragraph [31] the tribunal recorded Mr Singh’s claims about the extent to which he cared for the children. The Tribunal repeated those matters again later in its reasons at paragraph [37]. At paragraphs [28] to [30] of the Tribunal’s reasons the Tribunal discussed the financial assistance Mr Singh provided to Ms Kumar.

4. The applicant further contends that the Tribunal failed to give adequate weight to his “attachment he shared with the children.” But the Tribunal’s reasons demonstrate that it was alive to that attachment.  The Tribunal noted, for example, at paragraph [37] that the applicant:

   a)cared for Ms Kumar’s children;

   b)stated that “he should be around for his kids”;

   c)felt a compelling need to physically care for the children; and

   d)undertook a number of responsibilities looking after the children.

5. However, such considerations were outweighed by the Tribunal’s finding that it was not satisfied that other arrangements could not have been made for the care of Ms Kumar’s children when such care had been adequately managed by Ms Kumar prior to her relationship with the applicant and that Ms Kumar had continued to care for her children without the support of the applicant since March, 2014 when their relationship ended: reasons at [43].

1. The weight to be given to such matters and the evidence advanced by Mr Singh about them was a matter for the Tribunal.  I accept the first respondent’s submission that no error in reasoning is at all apparent.

2. To the extent that Mr Singh argues that the Tribunal’s finding that it did not accept “that a desire not to lose the additional funds from [the applicant’s] taxi driving amounts to compelling reasons to waive the Schedule 3 criteria”, his argument has no force. Whilst his evidence was to the effect that the additional funds were contributed to Ms Kumar and her family, his evidence also showed that his contribution of income was not revealed to Centrelink by Ms Kumar. The evidence from the applicant was to the effect that Ms Kumar “liked the extra money that [the applicant] earned when he was driving taxis because she liked to buy things” and “[Ms Kumar] was greedy and she wanted to continue to receive disability support pension and also money from his work as a taxi driver”: reasons at [28].

3. Moreover, Mr Singh’s absence in 2013 demonstrated that Ms Kumar and her children were able to exist without the financial support derived by him from his taxi driving. 

4. These matters were considered by the Tribunal. Having regard to the fact that Ms Kumar was receiving income from the disability support pension the Tribunal concluded that the lack of any additional monies from the applicant’s taxi driving did not amount to compelling reasons for not applying the Schedule 3 criteria: reasons at [39].

5. To the extent that Mr Singh argues that the Tribunal neglected to consider the duration of the relationship as amounting to a compelling reason to waive the Schedule 3 criteria, his argument enjoys no merit. The Tribunal was entirely aware of the nature and duration of the applicant’s relationship with Ms Kumar. It is not apparent from the Tribunal’s reasons that the length of the applicant’s relationship with Ms Kumar was claimed to constitute a compelling reason for not applying the Schedule 3 criteria. Mr Singh did not put his case on that basis. In any event, it is difficult to see how it could, of itself, meet the description of compelling circumstances.

6. In my view, the Tribunal’s decision was neither irrational nor unreasonable. Mr Singh’s grounds of review suggest that he was not aware of the Schedule 3 criteria and it was unreasonable for the Tribunal to make a decision without first providing an opportunity to him to postpone the matter in order for him to gather relevant information and material.

7. However, the Tribunal’s reasons record that the Tribunal expressly asked the applicant at the hearing whether there were any reasons why the Schedule 3 criteria should be waived: reasons at [28]. The reasons also record that the applicant proceeded to address a number of matters and provided details in support of such matters: reasons at [28]-[29]. Importantly, the reasons reveal that the Tribunal proceeded to discuss relevant issues with the applicant and his agent. There is nothing before me to suggest that he was not in a position to adequately respond. There was no request for an adjournment.

8. I accept the first respondent’s submission that the Tribunal’s decision cannot be said to be affected by legal unreasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5.

Conclusion

1. I accept that each of the grounds of challenge to the Tribunal’s decision reveal no error.  The application must be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date:  11 April 2017