SINGH v Minister for Immigration

[2016] FCCA 2620

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2620

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether there is a sufficiently arguable case to exercise Court’s powers under r.16.05(2)(a) – whether the Tribunal failed to consider relevant facts – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476.

Migration Regulations 1994, reg.1.15A(3), Schedule 2 - cls.820.211, 820.221.
Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a).

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530.

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant: SURJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1885 of 2015

Judgment of: Judge Street

Hearing date: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Sydney

Delivered on: 11 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr K Eskerie

Sparke Helmore

ORDERS

1. The application in a case filed on 27 July 2016 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $1,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1885 of 2015

SURJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 to set aside a default order that was made due to the failure of the applicant to appear at the hearing fixed on 8 April 2016.

2. The applicant has filed a substantive application seeking a constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 9 June 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. 

3. The applicant is a citizen of India and applied for a visa on 7 October 2011 on the basis of his relationship with his sponsor.

The Delegate’s Decision

1. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 in Schedule 2 of the Migration Regulations 1994 (“the Regulations”) as the parties were not in a genuine spousal relationship.

The Tribunal’s Decision

1. The applicant sought review of the decision and appeared before the Tribunal on 2 June 2015 to give evidence and present arguments.  The applicant informed the Tribunal that the sponsoring partner was away and would not attend. 

2. The Tribunal identified that the issue was whether the applicant is the spouse of the sponsoring partner. The Tribunal identified s.5F of the Act defining spouse, as well as the requirements under reg.1.15A(3) of the Regulations. Having considered the circumstances, the Tribunal found that at the time of decision, the parties did not have a mutual commitment to a shared life to the exclusion of all others in a genuine continuing relationship.

3. The Tribunal found that the applicant did not meet the requirements of s.5F(2)(b)-(d) of the Act. The Tribunal found that it was not satisfied that at the time of the decision, the parties were in a spousal relationship and accordingly, the applicant did not meet cl.820.221 of Schedule 2 of the Regulations. The Tribunal affirmed the decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

Proceedings Before this Court

1. The applicant filed proceedings in this Court on 7 July 2015. On 30 July 2015, the Registrar of the Court made orders providing an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. The matter was listed for callover before the Court on 8 April 2016 at 9.30 A.M.  A letter was sent to the applicant by the first respondent to the applicant’s address identifying the callover time and foreshadowing that the first respondent may move to have the application dismissed if the applicant fails to appear at the callover.

3. The applicant failed to appear at the callover and the first respondent moved for a dismissal of the application under r.13.03C(1)(c) of the Rules.

4. At the commencement of the hearing of this application in a case, the Court explained to the applicant that this was an application to determine whether the Court should set aside the orders made on 8 April 2016. The Court explained that this required considering two matters. First, whether the applicant had a satisfactory explanation for the failure to appear and secondly, whether there was a sufficiently arguable case to warrant the setting aside of the order made on 8 April 2016. 

5. The Court explained to the applicant that a sufficiently arguable case required reasonable argument that 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 this meant it was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or, a reasonable argument that the Tribunal’s decision was unfair. The applicant confirmed he understood what had been said by the Court. 

6. The Court explained 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 in reply. The applicant confirmed he understood what had been said by the Court.

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

   1. The Migration Review Tribunal made a jurisdictional error in denying the Applicant’s application for a Partner (Temporary) (Class UK) visa in failing to consider all the facts in law related to the Applicant’s application particularly:

   Particulars:

   (a) The Migration Review Tribunal did not consider that the Applicant is failed to provide evidence that the parties were not in genuine spouse relationship.

   (b) The applicant did not provide that a person is the spouse of another where the two persons are in a married relationship. Person is married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together.

   ·The reasons given by The Migration Review Tribunal reveals that the other requirements for a spousal relationship – Including joint ownership of assets, and joint liabilities; extent of pooling of financial resources, any legal obligations owed to the other party.

   ·Nature of household – including any joint responsibility for care and support of children, parties’ living arrangements; and my sharing of housework.

   ·The Tribunal has considered the full circumstances of the relationship and the matters finds that at time of decision the parties do not have a mutual commitment to a shared life to the exclusion of others and a genuine and continuing relationship and live together or not separately and apart on a permanent basis.

   ·The Tribunal finds that there is no evidence the applications meets the requirements for these alternative criteria.

   (Errors in the original)

8. In the course of the submissions by the applicant, the applicant requested further time to obtain a lawyer. Although earlier notice was given of an application for an adjournment, the adjournment was opposed by the first respondent. The applicant did not proffer any explanation as to why he would now be able to obtain a lawyer in circumstances where his proceedings have been on foot since 7 July 2015. 

9. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. Further, on the material before the Court, an adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time.

10. The applicant submitted from the bar table that he was in a genuine relationship and that the decision was unfair. What was said by the applicant from the bar table was, in substance, cavilling with the merits of the matter which were for the Tribunal to determine. This Court does not have power to make fresh findings of fact in relation to the issues that were before the Tribunal.  Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error. 

11. I accept the submissions of the first respondent that the grounds identified in the application are in substance, either nonsensical or cavil with the merits of the adverse findings made by the Tribunal. Those adverse findings on the material before the Court were open to the Tribunal and cannot be said to lack an evident and intelligible justification. 

12. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the material before the Court, there is nothing to identify any arguable case that the Tribunal failed to provide the applicant procedural fairness in the conduct of the review.

13. A disagreement by the applicant with the findings does not identify any arguable jurisdictional error. In considering whether or not to exercise the power under r.16.05(2)(a) of the Rules, I take into account the principles identified by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].

14. There is no suggestion of prejudice in the present case.  The applicant has proffered an explanation for the delay. That explanation is to the effect that the applicant was unaware of the callover date. The applicant’s explanation for not receiving the letters on the face of the affidavit is however, less than satisfactory. 

15. However, the more material consideration in the present case is whether the applicant has a sufficiently arguable case to warrant an exercise of the Court’s powers under r.16.05(2)(a) of the Rules.

16. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The application fails to disclose any arguable case of jurisdictional error. I am not satisfied that there would be any utility in setting aside the order made on 8 April 2016. I am not satisfied that the applicant has a sufficiently arguable case to warrant reinstatement of the proceedings.

17. The application in a case filed on 27 July 2016 is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 10 November 2016