SINGH v Minister for Immigration

[2016] FCCA 3182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3182

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal complied with its statutory obligation – whether the Tribunal gave the applicant opportunity for oral evidence – whether the adverse findings made by the Tribunal were unreasonable – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, regs.801.221, 820.211 of sch.2, 3001, 3002, 3004 of Sch.3

Applicant: HARVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1867 of 2016

Judgment of: Judge Street

Hearing date: 8 December 2016

Date of Last Submission: 8 December 2016

Delivered at: Sydney

Delivered on: 8 December 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1867 of 2016

HARVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 in the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 June 2016 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of India. The applicant arrived in Australia on 18 April 2008 on a subclass 571 visa which ceased on 13 May 2008. The applicant was granted a further subclass 571 visa and this visa was cancelled on 21 September 2010. On 8 December 2008 the applicant lodged an application for a protection visa, which was refused on 9 March 2009. The decision to refuse the protection visa was affirmed by a differently constituted Tribunal on 3 September 2009. The applicant sought to appeal the decision and the appeal was dismissed on 22 February 2010.  The applicant sought to appeal to the Full Federal Court of Australia, which was dismissed on 17 May 2010. The applicant was granted a bridging visa which expired on 14 June 2010.

3. The applicant sought Ministerial Intervention and was sent a notification of outcome letter dated 25 October 2010 confirming that the Bridging Visa E had expired. The applicant was informed that he was expected to leave Australia. The applicant remained in Australia without a visa until 13 April 2011, when the applicant was granted a further Bridging Visa E. On 20 January 2011, the applicant sought Ministerial Intervention. The notification of outcome letter dated 27 April 2011 confirmed that the applicant’s Bridging Visa E would expire on 29 April 2011. The applicant was again advised that he should leave Australia. 

4. On 29 April 2011 the applicant presented to the Department and the information in the Ministerial Intervention outcome letter was again explained to the applicant. The applicant was granted a Bridging Visa E until 17 May 2011. The applicant did not attend the scheduled interview on 17 May 2011 and remained in Australia as an unlawful person until 27 February 2014. The applicant was then granted a bridging visa in association with the application for a partner visa. The applicant lodged a valid application for a UK Partner (Temporary) and BS Partner (Residence) visa on 24 January 2014. 

The Delegate

1. The delegate found that the criteria for the grant of a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa were not met. The delegate made reference to the applicant not meeting any other criteria and assessing the application under subclause (2) of reg 820.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). 

2. The delegate made reference in that regard to the applicant having to meet the criteria under 3001, 3003 and 3004 of Schedule 3 to the Regulations unless the Minister is satisfied there are compelling reasons for not applying these criteria. The delegate made reference to the fact that the department records show that the applicant’s last substantive visa was cancelled on 21 September 2010. In those circumstances the applicant ceased to hold a substantive visa more than 28 days prior to the lodging of the application, and accordingly the delegate concluded the applicant did not meet criteria 3001 of Schedule 3 to the Regulations. 

3. The delegate turned to consideration of whether there were compelling reasons for not applying the Schedule 3 criteria. The delegate noted that on 25 August 2014 the applicant was provided with an opportunity to submit information regarding any compelling factors for consideration. The delegate noted that notwithstanding the appointment of a registered migration agent, no documents were provided in respect of the request. The delegate considered the information before the delegate and found there were not compelling reasons to waive the Schedule 3 criteria requirements.

4. Accordingly, the delegate found that the applicant did not satisfy the criteria for the grant of a Partner (Temporary) (Class UK) subclass 820 (Partner) visa and refused the application for a Partner (Temporary) (Class UK) subclass 820 (Partner) visa. The delegate found that as the applicant did not meet cl.801.221 of Schedule 2 to the Regulations, the applicant did not meet the criteria for a Partner (Residence) (Class BS) (Subclass 801) visa and accordingly refused to grant a Partner (Residence) (Class BS) (Subclass 801) visa to the applicant.

The Tribunal

1. The applicant applied for review of the delegate’s decision on 18 November 2014. There were a series of letters sent by the Tribunal to the applicant inviting the applicant to attend a hearing in respect of which the applicant made requests for an adjournment. The first letter dated 20 October 2015 invited the applicant to attend a hearing on 13 November 2015. The applicant was then invited to attend a hearing by letter dated 30 October 2015 on 3 February 2016. The applicant obtained an adjournment and by letter dated 11 January 2016, the applicant was invited to attend a hearing on 10 June 2016. The applicant appeared on that date to give evidence and present arguments before the Tribunal.

2. The Tribunal noted that the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(c) of Schedule 2 to the Regulations because the applicant did not satisfy the Schedule 3 criteria, being that the applicant was not the holder of a substantive visa at the time of the partner visa application. The delegate did not accept that there were compelling reasons not to apply the Schedule 3 criteria.

3. The Tribunal summarised what occurred at the hearing and that the Tribunal raised with the applicant whether he held a substantive visa. The applicant confirmed that he had not held a substantive visa since 21 September 2010. The Tribunal made reference to the applicant’s de-facto partner and inconsistencies in respect of the applicant’s information as to when the applicant’s de facto partner was in gaol.  The Tribunal identified the inconsistency as raising a very serious credibility issue in respect of the applicant’s claims to be in an ongoing de-facto relationship with the de-facto sponsor. The de-facto sponsor did not attend the hearing to give evidence before the Tribunal.  The Tribunal noted that the applicant had originally claimed protection on the basis that he was a homosexual and the applicant now explained that he had changed his mind from liking boys to now liking girls. 

4. The Tribunal made reference to the requirements of cl.820.211(2)(d) of Schedule 2 to the Regulations. The Tribunal found that the applicant last held a substantive visa on 21 September 2010 and that accordingly, the visa application was not made within 28 days of the relevant day and the applicant did not satisfy the criteria 3001. 

5. The Tribunal proceeded to consider whether there were compelling reasons for not applying the criteria. The Tribunal made reference to the policy on which it is appropriate to have regard to any history of non-compliance by the applicant as well as the length of time the applicant has been unlawful and the reasons why the applicant has been unlawful. In relation to compelling reasons, the applicant raised the allegation that he was gay and scared of his family and did not like Indian people. The Tribunal did not accept that the applicant was homosexual. The Tribunal accepted that the applicant may have had a disagreement with his father about cutting his hair but did not accept that the applicant’s father threatened to kill him. The Tribunal did not accept that the applicant could not have returned to India with short hair, notwithstanding that he is from a Sikh background. 

6. The Tribunal found that the applicant was not a credible witness. The Tribunal found that the applicant and the de-facto sponsor were not in a genuine relationship and rejected the applicant’s evidence to the contrary. The Tribunal found it was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found the applicant did not meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. On 15 September 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed by the applicant.

2. The grounds of the application are as follows:-

   1. The Tribunal did not give me opportunity to bring my partner in the Tribunal to give oral evidence that our relationship is genuine and continuing, I believe the Tribunal's decision was unreasonable and not a correct error.

   2. The Tribunal emphasised on the contents of my protection visa application at the time of hearing, not on my partner visa application. The Tribunal refused my application on the ground that my partner entered into a contrived relationship with me without giving me the opportunity to address this issue. I believe the decision to refuse my application is not correct and the Tribunal fell into jurisdictional error.

   3. The Tribunal did not consider me as a credible witness and refused my application. I believe the decision of the Tribunal is not correct and should be considered as unreasonable.

3. At the commencement of the hearing, the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Consideration of adjournment application

1. From the bar table, the applicant in the course of submissions sought an adjournment. The applicant said that he needed more time. The applicant had given no earlier notice of the adjournment application to the first respondent. The adjournment application was opposed by the first respondent. Nothing said by the applicant form the bar table identified any utility in allowing the applicant an adjournment. The applicant’s proceedings were commenced from 18 July 2016 and the applicant had an opportunity as a result of the Registrar’s orders on 15 September 2016 to put on material.

2. The applicant has a history of attempting to delay proceedings as is apparent from the hearing before the Tribunal.  Nothing said by the applicant identified any proper basis according to which an adjournment should be granted. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.  It was for these reasons that the adjournment was refused.

Consideration

1. From the bar table, the applicant explained the problems that he had in relation to his relationship with his partner and the interference, apparently of her father. Nothing said by the applicant from the bar table identified any jurisdictional error. In relation to Ground 1, it is apparent that the Tribunal complied with its statutory obligation and invited the applicant to attend a hearing to give evidence and to put on submissions. The applicant was given several adjournments by the Tribunal in that regard.

2. The assertion that the applicant did not have an opportunity to bring his partner to the Tribunal to give oral evidence is unsupported by any material before the Court. On the face of the material before the Court, the applicant had ample opportunity in respect of the notified hearings to arrange for evidence to be taken from his partner if he had wished to do so.

3. The Court notes that there was no response completed in relation to the response to hearing form that was sent to the applicant with the letter inviting the applicant to attend the hearing on 10 June 2016. That form provided an opportunity to identify whether there was any witness the applicant wished to have attend. The inconsistencies identified in the Tribunal’s reasons identify a proper basis on which it was open to the Tribunal to make adverse findings in respect of the applicant’s credit.  The adverse findings cannot be said to lack an evident or intelligible justification.

4. The reasoning by the Tribunal in respect of the applicant failing to meet the criteria under 3001 because the applicant failed to hold a substantive visa within the 28 day period, prior to lodging the application was not contested by the applicant. The only relevant issue before the Tribunal was the issue of compelling reasons. The adverse findings by the Tribunal in relation to whether there were compelling reasons were open on the material before the Tribunal and cannot be said to be unreasonable, illogical or irrational. Ground 1 fails to make out any jurisdictional error. 

5. In relation to Ground 2, it was open to the Tribunal and relevant to take into account the applicant’s assertions in relation to his protection visa in which the applicant said he was gay. This was in circumstances where the partner visa was now being advanced on the ground that the applicant said he now like girls. That was clearly relevant in respect of the shift of the applicant’s evidence in which the applicant then maintained again that he could not go back to India because he was gay. Ground 2 is in substance an impermissible challenge to the adverse findings made by the Tribunal that were open on the material before the Tribunal. Ground 2 fails to make out any jurisdictional error. 

6. In relation to Ground 3, for the reasons I have already given it was open to the Tribunal to make adverse findings in relation to the applicant’s credit and given the inconsistencies in the applicant’s evidence. Those adverse findings are not ones in respect of which there was any unreasonableness by the Tribunal and the Tribunal provided cogent reasons for the adverse credibility findings. Ground 3 fails to make out any jurisdictional error. 

7. The application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017