Singh v Minister for Immigration

[2016] FCCA 3143

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3143

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a higher education visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)
Migration Act 1958 (Cth) ss.5F, 5CB, 116, 359A, 338, 348, 357, 359A, 360

Cases cited:

SZLPO v Minister for Immigration (No 2) [2009] FCAFC 60

SZMFZ v Minister for Immigration [2008] FCA 1890

SZMPT v Minister for Immigration (2009) 107 ALD 121

Applicant: PARGAT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2141 of 2016

Judgment of: Judge Driver

Hearing date: 6 December 2016

Delivered at: Sydney

Delivered on: 6 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2141 of 2016

PARGAT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 July 2016. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s, Mr Singh’s subclass 573 Higher Education Sector Visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 29 November 2016.   

Background

1. Mr Singh was granted a Higher Education Sector (subclass 573) visa on 10 April 2015.  He was granted the visa on the basis that he satisfied the secondary criteria for grant of the visa.  The primary visa holder was his wife and Mr Singh’s visa was granted on the basis that he was a member of her family unit. 

2. "Member of the family unit" was defined in regulation 1.12 of the Migration Regulations 1994 (Cth) (the Regulations) and relevantly included where a person is a "spouse" or a "de facto" of another person. These terms were defined in ss.5F and 5CB of the Migration Act 1958 (Cth) (the Migration Act), respectively.

3. Pursuant to s.116(1)(a) of the Migration Act, the Minister may cancel a visa if "the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists". If this ground for cancellation exists, the decision maker then has the discretion to consider whether to cancel the visa.

4. By email dated 12 August 2015 Mr Singh’s wife advised the Department that she was no longer living with Mr Singh and that the relationship had ceased.  The email accused Mr Singh of slapping her twice, and stated that she was in danger from Mr Singh.

5. By post and by email dated 16 September 2015 the Department sent Mr Singh a Notice of Intention to Consider Cancellation of his visa (Notice).[1] The Notice advised Mr Singh that his visa may be cancelled under s.116(1)(a) of the Migration Act as his relationship had ceased.

   [1] Court Book (CB) 4

6. Mr Singh responded to the Notice by email dated 21 September 2015.[2]  Mr Singh did not address whether the relationship had ended, but the tone of the email was such as to suggest that he accepted that this was the case.  He alleged that his wife blackmailed him that if he did not separate from her she would kill herself, and that his life was now ruined because he had left his job to come to Australia to be with his wife.  Mr Singh asked that he be allowed to stay in Australia until the visa expired. The email otherwise made allegations that his wife was working in breach of her visa conditions.

   [2] CB 9

7. Mr Singh sent a further email on 6 October 2015[3]  in which he stated that he was happy to have the visa cancelled but wanted to speak to someone about his visa and current situation, and asked that he be able to attend in person and 'have a chat'.

   [3] CB 22

8. Mr Singh’s wife subsequently sent a further email to the Department on 11 October 2015, stating that Mr Singh was harassing her, asking her to save his visa, and that he was blackmailing her with photographs.

9. The delegate of the Minister (delegate) made a decision to cancel Mr Singh's visa on 16 October 2015. The delegate found that the ground for cancellation under s.116(1)(a) arose as Mr Singh’s visa was granted on the basis that Mr Singh was a member of the primary visa holder's family unit and he had ceased to be in a relationship with the primary visa holder, such that he was no longer her spouse or de facto and no longer a member of her family unit. The delegate decided to exercise his discretion to cancel the visa.

10. Mr Singh applied to the Tribunal for review of the delegate's decision on 21 October 2015.[4] He provided only a copy of the delegate's notification letter with his application, which stated that the visa had been cancelled and which referred to the breakdown of the relationship.  However, Mr Singh did not provide a copy of the delegate's decision record.

    [4] CB 26

11. Mr Singh did not appear before the Tribunal, and a decision was made affirming the decision of the delegate on 1 December 2015.[5]

    [5] CB 55

12. Mr Singh applied for review of that decision to this Court (file number SYG3504/2015) and the matter was remitted by consent to the Tribunal for redetermination for the Tribunal’s failure to discharge its obligations under s.359A with the following statement :

    The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent did not comply with its obligations pursuant to section 359A of the Migration Act 1958 (Cth). In particular the Second Respondent had before it information from the applicant's wife regarding allegations of violence perpetrated by the [applicant], which it relied upon at [10]-[11] of its decision record as part of the reason for concluding that the applicant's visa should be cancelled. This information enlivened the AAT's obligations under section 359A(1) of the Migration Act 1958 (Cth), and accordingly needed to be put to the applicant for his comments or response. The Second Respondent failed to comply with this obligation.

13. Mr Singh appeared before the presently constituted Tribunal on 16 June 2016.[6]

    [6] CB 67

14. Following the hearing the Tribunal wrote to Mr Singh on 22 June 2016 pursuant to s.359A putting information to Mr Singh that it considered could be a reason or part of the reason for affirming the decision under review. The information was identified to have been from Mr Singh’s wife and indicated that Mr Singh had slapped her on two occasions. It is also reported that this was discussed at the hearing.[7]  

    [7] CB 72, [18]

15. Mr Singh responded by facsimile on 6 July 2016 to refute the allegation that he slapped his wife, and he claimed that she had fabricated the allegation to “gain some kind of advantage”.[8]

The decision of the Tribunal

[8] CB 76

1. The Tribunal found that Mr Singh had separated from his wife, the primary visa holder,[9] that he was therefore no longer her spouse,[10] nor a member of the same family unit as the primary visa holder.[11] The Tribunal was satisfied that Mr Singh no longer met the secondary criteria for the grant of the visa, and the ground for cancellation in s.116(1)(a) was made out.[12]    

   [9] CB 81  [10]

   [10] CB 81  [11]

   [11] CB 81 [12]

   [12] CB 81  [13]

2. The Tribunal considered whether the power to cancel the visa should be exercised.[13]

   [13] CB 81  [14]

3. In relation to the factors put forward by Mr Singh for the Tribunal to consider in exercising its discretion the Tribunal found:

4. The fact that Mr Singh wishes to study English in Australia, does not weigh in his favour.[14]

   [14] CB 82 [21]

5. While the Tribunal was willing to accept that there may be some negative reaction from Mr Singh’s family following the relationship breakdown, the Tribunal found Mr Singh exaggerated claims that his father would commit suicide.[15]

   [15] CB 82  [23]

6. The Tribunal also noted that as Australia is not the place of Mr Singh’s permanent residence, he would at some stage have to return to India, and therefore the difficulties in returning will arise in any event.[16]

   [16] CB 82 [23].

7. In relation to Mr Singh’s inability to obtain a Government job because of his age, the Tribunal found that this was a product of his age and circumstances.[17]

   [17] CB 82 [24].

8. The Tribunal found that the fact that Mr Singh allegedly only agreed to the marriage on the basis that he and his wife would leave their village and that she had threatened to commit suicide if the marriage did not take place, were not relevant.[18]

   [18] CB 82 [24].

9. The Tribunal was prepared to accept that the relationship breakdown may have been beyond Mr Singh’s control to some extent; however it did not consider that the circumstances were extenuating such that the visa should be reinstated given that the relationship was at the heart of Mr Singh’s entitlement to the visa.[19]

   [19]CB 83 [25].

10. The Tribunal made no findings on claims by the primary visa holder that Mr Singh slapped her, noting that Mr Singh has denied this, and drew no negative inference from such claims in the exercise of its discretion.[20]

    [20] CB 83 [26].

11. The Tribunal found that the circumstances of the relationship breakdown were not extenuating and concluded that the preferable course was for the visa to remain cancelled.

Present proceedings

1. These proceedings began with a show cause application filed on 9 August 2016. Mr Singh continues to rely upon that application. There are two grounds in the application which are reproduced at [25] of the Minister’s submissions:

   1. The tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.

   2. A breach of the rules of natural justice occurred in connection with the making of the decision.

2. I received, subject to relevance, Mr Singh’s affidavit filed with his application. 

3. I also have before me as evidence the court book filed on 3 November 2016.  Only the Minister has filed legal submissions in accordance with procedural orders made by a registrar. 

4. I invited oral submissions from Mr Singh this morning.  He told me that he is concerned that his wife has ruined his life.  He has applied for divorce apparently in the Family Court of Australia.  I raised with Mr Singh the issue dealt with by the Tribunal.  It was apparent that Mr Singh has no particular quarrel with that decision, other than the consequences of the cancellation of his visa.

5. I explained to Mr Singh that the issue before the Tribunal was a simple one.  Mr Singh was only entitled to hold the visa as a member of his wife’s family group.  Once his relationship with his wife broke down and he was no longer a member of her family group, there needed to be some special circumstance to justify not cancelling his visa. The Tribunal was not satisfied that any special circumstance existed.

6. There is, in my opinion, no arguable case of error on the part of the Tribunal.  The Minister’s submissions deals with the grounds raised in the application.  I agree with those submissions. 

Ground One

1. Ground one alleges that the Tribunal did not have jurisdiction to make its decision because its “reasonable satisfaction” was not arrived at. It is unclear what precisely is meant by this ground.

2. The Tribunal plainly did have jurisdiction. Cancellation decisions are Part 5 reviewable decisions pursuant to s.338(3), and pursuant to s.348 the Tribunal must review such a decision.

3. Insofar as the ground seeks to attack the exercise of the Tribunal’s discretion, by reference to the Tribunal’s “reasonable satisfaction”, the Tribunal correctly, and reasonably, applied its discretion.

4. Having found that circumstances existed for cancelling the visa the Tribunal then turned to consider exercise of its discretion.

5. In doing so it considered the factors put to it by Mr Singh, as well as matters outlined in the Department’s Procedures Advice Manual.

6. The findings made by the Tribunal were open to it to make on the material before it and for the reasons it gave.

Ground Two

1. The second ground makes a broad allegation of a breach of procedural fairness. No particulars are provided. There has been no breach of procedural fairness. The Tribunal’s procedural obligations are set out in Division 5, Part 5 of the Migration Act, as per s.357A.

2. Mr Singh was invited to and attended a hearing before the Tribunal, pursuant to s.360 of the Migration Act.

3. The Tribunal complied with its obligations under s.359A in its reconsideration of this application.

4. The fact of the Mr Singh’s relationship ending fell within the exception of s.359A(4)(ba) because at [10] of the decision record the Tribunal records that Mr Singh provided that information to the Tribunal at hearing.

5. The reconstituted Tribunal sent Mr Singh a letter pursuant to s.359A of the Migration Act, which addressed the email from Mr Singh’s wife. The letter said:

   The particulars of the information are:

   - Information of the Department file from your wife, indicating that you slapped her on two occasions.

   This information is relevant to the review because it may be a discretionary factor the Tribunal would take into account in deciding that the visa should be cancelled.

6. In any event, having regard to the Tribunal’s reasons for decision, the Tribunal ultimately placed no weight on this information. At [26] it stated:

   The Tribunal makes no findings on claims by the primary visa holder that the applicant slapped her, noting that the applicant has denied this, and draws no negative inference from such claims in the exercise of its discretion.

7. The Court may rely upon the Tribunal’s reasons to determine whether certain information was considered to be a reason for affirming the decision.[21] Consequently, it is open for the Court to infer that this information was not required to be put to Mr Singh pursuant to s.359A because it did not form part of the reasons for the Tribunal affirming the decision.

   [21] SZMFZ v Minister for Immigration [2008] FCA 1890 at [36] per Siopis J; SZMPT v Minister for Immigration (2009) 107 ALD 121 at [17]-[18] per Jacobson J; SZLPO v Minister for Immigration (No 2) [2009] FCAFC 60 at [31].

8. In any case, no error arises as a result of the Tribunal having sent Mr Singh a letter pursuant to s.359A and no breach of procedural fairness has been made out by Mr Singh or is otherwise apparent. To the extent that the section was engaged, the Tribunal clearly discharged any obligations that arose pursuant to s.359A of the Migration Act.

9. I conclude that Mr Singh is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed

10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Mr Singh doubts his capacity to pay and indicated that he would seek to have any costs awarded written off.  That is a matter for him.  Impecuniosity is not a reason for the Court to refrain from making a costs order.

11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth)

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 14 December 2016