Singh v Minister for Immigration
[2020] FCCA 1781
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1781 |
| Catchwords: MIGRATION – Partner (Residence) (class BS) (subclass 801) visa – decisions of the Administrative Appeals Tribunal – where the applicant failed to attend the Tribunal hearing – where the applicant did not apply for reinstatement – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360A, 362B, 362C, 379A, 379C, 476 Migration Regulations 1994 (Cth), reg.4.21, cl801.221 of sch.2 |
| Cases cited: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 Bala v Minister for Immigration & Border Protection [2019] FCA 600 |
| Applicant: | SUKHPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 254 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 1 July 2020 |
| Date of Last Submission: | 1 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr M Hawker |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 254 of 2019
| SUKHPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He first arrived in Australia on 11 March 2010 (Court Book (“CB”) 81). On 2 October 2012, the applicant married an Australian permanent resident (CB 12). On 14 March 2013, the applicant applied for a Partner (Temporary) (class UK) (subclass 820) (the “temporary visa”) / Partner (Residence) (class BS) (subclass 801) visa (the “residence visa”) (CB 1-34). His wife was his sponsor.
On 13 March 2014, the applicant was granted the temporary visa (CB 44-47). Two years later (on 26 March 2015), the applicant applied for the residence visa (CB 48-60). He was still sponsored by his wife.
On 18 September 2017, a delegate of the first respondent (the “Minister”) invited the applicant to comment on adverse information that it had received (CB 66-75). The information related to interviews conducted with the applicant’s family and neighbours in India which suggested that some of them (including the applicant’s father) were not aware that he was married. Further, it appeared that the applicant’s family knew very little about the marriage.
On 26 September 2017, the applicant responded to the invitation to comment (CB 76-82). He addressed the concerns raised in the invitation, confirmed that he was in a genuine relationship with his wife and also provided a statutory declaration confirming the same.
On 4 December 2017, the applicant was refused the residence visa (CB 83-105). The delegate found that the applicant did not meet cl.801.221(2) of the Migration Regulations 1994 (Cth) (the “Regulations”). The delegate was not satisfied that the applicant continued to be the “spouse” (as that term is defined in the Migration Act 1958 (Cth) (the “Act”)) of his wife.
On 14 December 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 106-107).
On 27 March 2019, the applicant was sent an invitation to attend a hearing before the Tribunal scheduled for 11 June 2019 (CB 112-117). The applicant failed to attend the Tribunal hearing (CB 118-120). The Tribunal dismissed the application for non-appearance (the “Dismissal Decision”) (CB 122-126). The applicant was advised that he could apply for reinstatement within 14 days. No application for reinstatement was received.
On 25 June 2019, the Tribunal confirmed the Dismissal Decision (the “Confirmation Decision”) (CB 129-130).
On 10 July 2019, the applicant sought judicial review in this Court pursuant to s.476 of the Act.
Tribunal’s Decisions
The Dismissal Decision
In full, the Dismissal Decision provides:
1. The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 11 June 2019 at 1:00PM. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the nonappearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision provides:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 December 2017 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under the Migration Act 1958 (the Act).
2. On 11 June 2019 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Proceedings in this Court
The application for judicial review filed 10 July 2019 outlines the following “grounds of review”:
1. I was born on [omitted] in India
2. I finished my secondary education from [omitted] in 2009.
3. I had a dream to excel in my life and I was ready to put my best efforts towards the same.
4. After that I did some volunteer work experience, as I was lacking job experience and essential study requirements to get jobs.
5. After completing my study in India, I did some research about my higher study prospects.
6. I decided to commence my further study in Australia and my parents agreed for the same.
7. I applied for my student visa and successfully got my visa in 2010.
8. After that, I arrived in Australia on 11th of March 2010 and started my study in Australia.
9. I was enrolled in Certificate IV in small business and successfully completed the same.
10. After attainment of certificate IV in business I got enrolled in Diploma of Business Management and successfully attained the same.
11. I was regular with my studies completing my coursework and completing my studies on time.
12. Destiny had something else planned for me, I met love of my life [the sponsor] and instantly had a strong bonding.
13. After taking our relationship further for few months we decided to get married and we got married on 2nd of October 2012.
14. I applied for my Partner visa application on 15th Mar 2013.
15. I got my Provisional partner visa in March 2014.
16. I was invited to comment on adverse information received by Department of Immigration in 18th of September 2017.
17. I wrote my response to Department of Home Affairs on 25th of September 2017 clarifying misconceptions and doubts they have regarding my genuine and ongoing relationship.
18.I got my partner visa refused on 4th of December 2017.
19. I lodged review of my case with Administrative Appeal Tribunal under MR division on 14th of December 2017.
20. Decision of Department of Immigration and Border Protection was affirmed by Administrative Appeals Tribunal on 11th of June 2019.
21. I tried to provide ample evidence and present argument to support my case.
22. I am still involved in genuine and ongoing relationship with my wife which has been ignored by Department of Home Affairs.
23. I would like to bring to the attention of Federal Circuit court that Decision maker has made an error in the judgement.
The applicant affirmed an affidavit dated 9 July 2019 which was in the same terms as the grounds identified above.
Despite an opportunity to file any amended application, any affidavit evidence and an outline of written submissions, no further materials were filed by the applicant. The materials before the Court are limited to the judicial review application, a Court Book numbering 141 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 4 June 2020.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that in reference to the “2017 decision” he did not have a good relationship with his family and only his brother was able to provide answers to the Department.
The “2017 decision” is a reference to the delegate’s decision. This Court does not have jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4).
The applicant further stated that, at the time of the Tribunal hearing, he was suffering mental health issues and forgot to attend. He said he “mentally was not there” and this ultimately affected his relationship with his wife (which has now ended).
While the Court sympathises, the applicant did not provide any evidence to the Tribunal, or to the Court, to this effect. Had the applicant provided this explanation to the Tribunal following the Dismissal Decision, it may well have resulted in the application being reinstated. However, he did not do so. The fact that the applicant has now provided an explanation of sorts (but without corroborative evidence) does not, unfortunately, assist him in relation to whether the Tribunal fell into jurisdictional error.
Consideration
Judicial Review Application
Unfortunately, the applicant’s grounds of review do not identify any jurisdictional error in either of the Tribunal’s decisions. The grounds as articulated provide a factual background to the applicant’s application and his history in Australia. They do not engage with the Tribunal’s decision. Further, to the extent that they refer to matters before the delegate (grounds 21-22), the Court has no jurisdiction in relation to the delegate’s decision: the Act, s.476(2) and (4).
Otherwise
Although the judicial review application fails to identify any errors, the Court has (in its duty to self-represented litigants) remained astute and alert to the possibility of any error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. Further, while the applicant indicated in his judicial review application that he only sought review of the Dismissal Decision, the Court will also address the Confirmation Decision.
Dismissal Decision
The statutory basis for the Tribunal to make the Dismissal Decision under s.362B(1A) is enlivened if s.362B(1) is met. Section 362B(1) requires that:
a)the applicant is validly invited to attend a hearing; and
b)the applicant does not appear on the day and time which the invitation scheduled them to appear.
Here the invitation inviting the applicant to attend the hearing:
a)clearly indicated (on the first page) the day, time and place at which the hearing would take place (CB 112): the Act, s.360A(1);
b)was sent to the applicant’s nominated email (a method prescribed by s.379A(5) of the Act). By virtue of s.379C of the Act the applicant was deemed to have received it at the end of the day on 27 March 2019: the Act s.360A(2)(a);
c)was sent to the applicant on 27 March 2019. This exceeds the minimum notice period prescribed by reg.4.21(4) of the Regulations: s.360A(4); and
d)included a statement describing the effect of s.362B and the consequences of failing to appear: the Act, s.360A(5).
Accordingly, the applicant was validly invited to the hearing and s.362B(1)(a) is satisfied.
The evidence indicates, and it does not appear to be disputed, that the applicant did not attend the hearing before the Tribunal on 11 June 2019.
In these circumstances, s.362B(1)(b) was satisfied.
The statutory power under s.362B(1A) was thus enlivened.
Here, the Tribunal chose to proceed under s.362B(1A)(b) of the Act. Section 362B(1A) is discretionary. It is thus necessary to consider whether it was “reasonable” for the Tribunal to proceed to make the Dismissal Decision.
The Court finds that it was entirely reasonable for the Tribunal to make the Dismissal Decision in the circumstances of this case.
The area of decisional freedom that the Tribunal enjoys is shaped by the scope and purpose of the provision. As noted in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [69]-[70]:
69. The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.
70. Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.
Bearing the above in mind, the Court finds that it was reasonable for the Tribunal to make the Dismissal Decision in circumstances where:
a)the applicant was validly invited to the hearing;
b)the applicant did not respond to the invitation to the hearing (despite being asked to do so). He gave no indication of his intention to attend the hearing;
c)since filing his application at the Tribunal on 17 December 2017, the applicant had not made any inquiries or submitted any documents to the Tribunal. This demonstrates a lack of engagement with the review process;
d)the applicant was sent two SMS hearing reminders (which the Court notes were sent to the same mobile telephone number that the applicant provided this Court) which stated the date of the hearing and provided the number to be used if the applicant needed to contact the Tribunal; and
e)the Tribunal waited until 1.15pm (15 minutes after the start time) to allow the applicant to appear. He did not do so.
In all of the circumstances, it was reasonable for the Tribunal to make the Dismissal Decision.
No jurisdictional error arises in relation to the Dismissal Decision.
Confirmation Decision
Having made the Dismissal Decision, the Tribunal was required to comply with s.362C of the Act.
The Tribunal complied with s.362C by:
a)making the Dismissal Decision (which set out that the applicant’s application was dismissed pursuant to s.362B(1A)(b), that the reason for this was because the applicant had failed to attend the scheduled hearing and noted the day and time of the hearing): the Act, s.362C(2);
b)sending the Dismissal Decision to the applicant’s nominated email address (a method prescribed by s.379A(5)) on the same date that it was made (i.e. 11 June 2019). The Dismissal Decision was, therefore, provided within 14 days: the Act, s.362C(5); and
c)attaching to the Dismissal Decision a cover letter which advised the applicant that he could apply for reinstatement within 14 days and by including an information brochure about dismissal decisions: the Act, s.362C(6).
The Tribunal complied with the procedural fairness obligations in s.362C of the Act. In circumstances where the applicant did not apply for reinstatement, the Tribunal was required to confirm the Dismissal Decision: the Act, s.362B(1E). There was no discretion to do otherwise: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 at [10]-[11].
Here, the Confirmation Decision was the only decision the Tribunal could make. No jurisdictional error arises in this regard.
Conclusion
The applicant’s judicial review application has failed to identify any jurisdictional error. The Court has otherwise reviewed the Tribunal’s decision and is unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 July 2020
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