SINGH v Minister for Immigration

[2017] FCCA 165

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 165

Catchwords:
MIGRATION – Administrative review –jurisdictional error established – writ of mandamus issued – matter remitted for rehearing.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) cl.820.211(2)(d)(ii)

Applicant: RAJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 482 of 2016

Judgment of: Judge Vasta

Hearing date: 30 January 2017

Date of Last Submission: 30 January 2017

Delivered at: Brisbane

Delivered on: 30 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: A J TORBEY & ASSOCIATES

Counsel for the Respondents: Mr McLeod

Solicitors for the Respondents: SPARKE HELMORE

ORDERS

1. That the decision of the Administrative Appeals Tribunal be quashed.

2. That a Writ of Mandamus issue directing the Administrative Appeals Tribunal to determine the Applicant’s application according to law.

3. That the First Respondent pay the Applicant’s costs of the application fixed in sum of $7,206.00.

4. That the matter be remitted for rehearing to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 482 of 2016

RAJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 30 May 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”) which itself affirmed an earlier decision of the Minister not to grant the Applicant a partner visa.

2. On the facts before me, it seems that the Applicant came to this country on a student visa.  That visa expired on 12 May 2010.  The Applicant applied for a further visa and was granted a bridging visa whilst the issue of his new visa was being sorted out.  The Applicant had begun a relationship with the sponsor in 2010 and married the sponsor in 2012.  The Applicant applied for a partner visa on 9 May 2012.  It would seem that the Applicant had abandoned his quest for the further student visa by that time.

3. Before the Minister can consider such an application, cl.820.211(2)(d)(ii) relevantly reads:

   “(d) in the case of an applicant who is not the holder of a substantive visa--either:…

   ·   (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”

4. Criterion 3001reads:- “that the application must be made within 28 days of the day that the Applicant last held a substantive visa”.  In this case, it means that the application must be made within 28 days of 12 May 2010. The application was made on 9 May 2012, which is approximately 23 months out of time.  Therefore, the Applicant did not satisfy the criteria and the application could not be considered unless there were compelling reasons for not applying those criteria.

5. How a decision-maker goes about finding compelling reasons is not defined in the legislation.  It is obvious that such a finding is a matter of discretion of the decision-maker and it is presumed that the decision-maker will know compelling reasons when they see such reasons and give effect to them.

6. In his originating application, the Applicant listed 11 grounds.  These were: 

   “1. The second respondent failed to properly interpret and apply subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994; 

   2. The second respondent did not properly address, did not make factual findings in relation to and ultimately failed to properly decide or to decide at all (as it was required to do) if it ought exercise its discretion under subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 to waive the requirements of Schedule 3 criteria 3001, 3003 and 3004;

   3. The second respondent simply failed to provide any reasoning or reasons for concluding that there were no ‘compelling reasons’ and hence further failed to properly conduct the review it must undertake under ss 348 and 349; 

   4. The decision of the second respondent to fail to properly exercise its discretion to waive subparagraphs Schedule 3 criteria 3001, 3003 and 3004 was unreasonable; 

   5. The second respondent’s decision was an improper exercise of power; 

   6. The second respondent’s decision was unreasonable; 

   7. The second respondent failed to properly conduct a review for the purpose of implementing ss 348 and 349 of the Migration Act 1958;

   8. The second respondent failed to take a number of relevant considerations into account; 

   9. The second respondent took a number of irrelevant considerations into account; 

   10. The second respondent’s decision involved an error of law; 

   11. The decision was otherwise unlawful.”

7. With all respect to the Applicant, most of these grounds have no substance.  I do not propose to traverse the grounds seriatim; suffice to say that the manner in which a decision-maker exercises discretion is a matter for the decision-maker.  If the ultimate decision that was made is a conclusion that is open on the evidence, there will be no jurisdictional error.

8. The matter that has troubled me in this case has been the approach of the Tribunal.  The Tribunal quite properly found that criterion 3001 had not been filled.  It was then incumbent upon the Tribunal to ascertain as to whether there were compelling reasons for the Tribunal to waive that criterion. 

9. There has been justifiable criticism of the Tribunal.  I have been handed the transcript of the proceeding.  At paragraph 41, the Tribunal said this:

   “41. …Your visa has been refused on the basis that you did not meet what is called Schedule 3 because when you applied for your partner visa you have to have done so within 28 days of your previous substantive visa. If you do not meet Schedule 3 then there need to be compelling reasons so that Schedule 3 doesn’t apply, okay?  That’s what we’re going to talk about today.”

10. As the Applicant submitted, this was not technically correct.  The visa had been refused because there were no compelling reasons to waive the criterion in Schedule 3.  It must be pointed out that the criterion actually was “applying for the visa within 28 days of the previous substantive visa ending”.  The criterion was not that “the application can be made in Australia if it is made within 28 days of the previous substantive visa ending, otherwise it must be lodged offshore unless there are compelling reasons to waive that requirement”. 

11. It seems to me that the Tribunal misunderstood the criterion and instead ran the hearing as if the criterion was that which I have just described.  This seems evident when one looks at those aspects of the transcript pointed out by the applicant.  It seems that the compelling reasons that the Tribunal were looking at were whether there were compelling reasons as to why the applicant could not apply offshore.

12. A reading of the Tribunal’s decision leaves one in no doubt that this was the question that it was asking.  At paragraph 31 of the decision the Tribunal summarised the compelling reasons in dot point form.

    “31. The parties claims in relation to compelling reasons can thus be summarised as follows: 

    ·   They would suffer financial hardship due to the cost of the applicant returning to India (and presumably that would impact upon his business as a StarTrack courier), and if the sponsor were to accompany him she would lose her job, interrupting her career.

    ·   The sponsor is too fearful of harm to be left alone in Brisbane – she cannot tolerate the applicant not being present at night at home and prefers to be collected from The Valley after work as she is fearful of being stabbed. 

    ·   The sponsor relies on the applicant to do the shopping and cooking as she works such long hours.

    ·   The sponsor is fearful regarding the conditions and lifestyle she would experience if she were to accompany the applicant to India. They could include being subject to racism and opposition from the applicant’s village, an inability to obtain employment and having to live without hot water, internet and electricity.

    ·   The parties have a very strong emotional bond. They have been together for a number of years – at least more than four, and live together and been married for at least that time as well. 

    ·   the parties were unaware of the need to lodge the partner visa application offshore.”

13. As can be seen by this summary, the compelling reasons were directed not to why the 28 day time limit should be waived, but as to why the Applicant should not have to make his application offshore.  It is this difference that has permeated the whole hearing, as well as the reasons of the Tribunal. 

14. The question is now as to whether this amounts to a jurisdictional error. 

15. It may very well be that the practical corollary of a finding that criterion 3001 has not been met is that the application must be made offshore.  It would then follow that launching into a hearing as to whether the application should occur onshore or offshore is part of an organic process of the inquiry into “compelling reasons”. 

16. However, it is my view that the very strict nature of the Migration Act 1958 (Cth) (“the Act”) means that the processes of the Act must be adhered to strictly.

17. In this case, the question was whether there were compelling reasons as to why the criterion of applying within 28 days should be waived.  That was not the question that the Tribunal asked of itself. 

18. In my view, such a diversion, albeit slight, constitutes a jurisdictional error. 

19. I will therefore grant the application and order the matter be reheard by the AAT.  The AAT may easily still come to the same conclusion once they ask themselves the correct question.  However, this is no reason for me not to grant the relief sought. 

20. As I have granted the application on this particular ground, I will not make any further pronouncements on the other grounds of the application, other than that that I’ve already made.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 9 February 2017