SINGH v Minister for Immigration

[2016] FCCA 1988

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1988

Catchwords:
MIGRATION – Application for Skilled Independent Class VB (Subclass 885) visa – review of decision of Migration Review Tribunal – whether the Tribunal unfairly considered material and gave greater weight to adverse evidence before it – whether the Tribunal considered all of the material before it – whether the Tribunal considered all of the applicant’s circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.104, 107, 109, 368, 430

Migration Regulations 1994 (Cth), regs.1.12, 1.15A, 2.41, cl.885.321

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

First Applicant: TEJINDER SINGH

Second Applicant: AGAM KAUR BOPARAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 994 of 2015

Judgment of: Judge Smith

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Melbourne

Delivered on: 15 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Mr D. Brown, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The first applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 994 of 2015

TEJINDER SINGH

First Applicant

AGAM KAUR BOPARAI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

1. The first applicant is a citizen of India. On 31 August 2003 he married another Indian citizen. I will refer to her as the applicant’s wife, even though they are no longer married. The second applicant is the first applicant’s daughter, although her mother is not the applicant’s wife, but another woman who is also a citizen of India.

2. On 15 September 2008, the applicant and his wife applied for a Skilled Independent Class VB (Subclass 885) visa. The applicant sought to qualify for that visa as a member of his wife’s family unit, see cl.885.321of sch.2 to the Migration Regulations 1994 (Cth). This had to be satisfied both at the time of the application and at the time of the decision. The term “member of a family unit” was defined by reg.1.12 so that the applicant had to be the spouse of his wife.

3. “Spouse” was in turn defined by reg.1.15A of the Regulations to require, amongst other things, that the applicant and his wife have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them be genuine and continuing, and they do not live separately and apart on a permanent basis.

4. The applicant and his wife were both granted visas on 2 April 2012. However, on 2 August 2013, the Department was alerted to certain information concerning the applicant and his wife. The information included that the applicant came to the attention of the department the previous day when he attended with another person, a woman, who presented a birth certificate for her daughter which stated that the applicant was the father. The two people stated that they were just friends, however, when the woman was asked, she stated that she and the applicant had been in a relationship since March or April 2011. The applicant was asked when his relationship with his wife had broken down and he stated that it was one year and some months ago.

5. Following from the receipt of that information, a delegate of the Minister wrote to the applicant on 9 August 2013, giving notice of an intention to consider the cancellation of his visa under s.109 of the Migration Act 1958 (Cth). The delegate considered that there had been non-compliance with a number of sections of the Act, including s.104 which states:

   Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

6. The delegate then recorded some of the information contained in the visa application lodged by the applicant and his wife and then set out the information which had been received by the department on 2 August 2013. The delegate wrote:

   …

   Based on the above information, it is clear that there was a change in circumstance which may affect your eligibility for grant of the Subclass 885 visa as a dependent spouse of (the applicant’s wife’s name) which you failed to notify the department.

7. The delegate wrote that the information indicated that at that time of the decision the applicant was no longer in a spousal relationship with his wife as defined in the Act. The delegate indicated that if the applicant had not complied with s.104 of the Act, his visa may be cancelled. The letter then set out the effect of certain provisions of the Act and invited the applicant to respond.

8. The applicant responded by letter, dated 30 August 2013. He said that he was living with his wife at Hoppers Crossing in Victoria until December 2012.

9. He admitted that during his marriage he had had a momentary lapse of judgment and was unfaithful to his wife, an action which he regretted. He stated that when he finally discussed that fact with his wife, they decided to separate and they had divorced in July 2013, but he stated that they had not started living separately until after December 2012. The applicant wrote that he was not aware that the mother of his daughter had put his name as the child’s father prior to April 2012. He included with the letter a number of documents, including statutory declarations from his wife, his wife’s brother, some friends, and from the mother of his daughter, all of which supported what the applicant had said in his letter.

10. On 17 October 2013, the delegate who had written to the applicant made a decision to cancel his visa under s.109 of the Act. The applicant then applied to the Migration Review Tribunal[1] for a review of that decision. He was represented by a migration agent for the purposes of that application.

    [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Tribunal’s decision

1. On 2 September 2014, the applicant attended a hearing conducted by the Tribunal together with his representative. At the hearing he provided a number of documents supporting his claim that he had continued to live with his wife at the Hoppers Crossing address. Amongst those documents were a Medibank tax invoice in his name showing the Hoppers Crossing address.

2. On 16 September 2014, the applicant’s representative wrote to the Tribunal providing further information in support of the applicant’s claims as well as a number of documents addressed to the businesses that were being conducted by the applicant in Wodonga and the level of community support that he gave in that town. Further submissions and documents were provided by the applicant’s representative on 20 November 2014 and on 12 February 2015.

3. On 14 April 2015, the Tribunal made a decision to affirm the decision of the delegate to cancel the applicant’s visa. Essentially, the Tribunal was not persuaded by the applicant’s evidence and gave greater weight to the birth certificate of the applicant’s daughter, which it found was applied for, and obtained, with the consent and knowledge of the applicant. The birth certificate also confirmed that the applicant’s address was the same as the address for his daughter’s mother, at least as early as March 2012, and that the relationship must have begun in or around April 2011, or by April 2011, which it found was consistent with the information provided by the mother in her interview with officers of the department in August 2013.

4. It found that having considered the evidence in its totality, it was satisfied that by the time the applicant’s visa was granted on 2 April 2012, the applicant was not in a spousal relationship with his wife. The Tribunal found that the applicant’s failure to notify this significant change in his personal circumstances constituted a failure to comply with the obligation in s.104 in the way described in the notice sent to the applicant by the delegate under s.107 of the Act. In other words, the Tribunal found that there arose a discretion under s.109 of the Act to cancel the applicant’s visa.

5. The Tribunal then addressed the question of whether it should exercise that power unfavourably to the applicant. It did so by considering the applicant’s response to the notice provided under s.107, as well as to the circumstances prescribed by reg.2.41 of the Regulations in accordance with sub-ss.109(1)(b) and (c). In this respect it referred to the evidence concerning the applicant’s contributions to society in Wodonga, but ultimately found that that and other matters in the applicant’s favour were outweighed by the other matters, including its conclusion that the applicant had been untruthful about the circumstances surrounding his relationship and the birth of his child. For those reasons the Tribunal concluded that the visa should be cancelled and so affirmed the decision of the delegate.

Consideration

1. The application filed by the applicant contains five separate grounds, and his written submissions, dated 31 May 2016, contained additional grounds. The first four grounds in both of those documents are the same, and are as follows:

   1)The decision of the MRT is affected by jurisdictional error as follows:

   i) The MRT put too much weight on my alternative Braybrook address on several documents, despite agreeing that that was my business address. It was a mere coincidence that Rajwinder Kaur was also living at that address, along with a few other occupants of that address.

   ii)There was no material change in my circumstances. I was still married to Navpreet Kaur and was in a spousal relationship with her. My extra-marital relationship with Rajwinder Kaur from which I had a child, did not mean that I was no longer in spousal relationship with Navpreet Kaur. Despite evidence to the contrary, the MRT wrongly regarded my extra-marital relationship as meaning the end of my spousal relationship.

   iii)The MRT gave more weight to events that happened after the grant of my visa on 2 April 2012, such as my separation and divorce from Navpreet Kaur and my subsequent living together with Rajwinder Kaur. However, at all relevant times I was still in spousal relationship with Navpreet Kaur and none of my circumstances had changed which required notification to the Immigration Department.

   iv)The MRT incorrectly assumed and determined that my relationship with Navpreet Kaur had ended well before 2 April 2012, despite evidence to the contrary by Navpreet Kaur and myself. The MRT based its assumption on my extra-marital relationship Rajwinder Kaur and our address being same on some documents, which also happened to be my business address as accepted by the MRT.

   v) The Immigration Department had incorrectly exercised its discretion in cancelling my visa and the MRT also incorrectly agreed with the decision of the Immigration Department. In this regard, the Tribunal did not give enough weight to my involvement in the community and my contribution to the community, both on a person and business level which would warrant the exercise of discretion in my favour. The MRT did not also take into account the adverse affect of the cancellation of my visa on my daughter and me.

2. Essentially, in these paragraphs, the applicant complains that the Tribunal placed too much weight on evidence concerning the address which was contained in the birth certificate and asserts that there were in fact no material changes to his circumstances and that the Tribunal was wrong to find otherwise. As I sought to explain to the applicant at the hearing, it is not for the Court to determine whether or not he was in fact still in a relationship with his wife when he was granted his visa, or that he was aware that his daughter had been born, or that his name and another address had been included on his daughter’s birth certificate. Those issues were fundamentally issues to be determined by the Tribunal in the exercise of its duty to review the delegate’s decision.

3. It is clear, as the applicant pointed out, that there was evidence going the other way. Namely, evidence that showed if accepted that the applicant was living at the address at Hoppers Crossing which was the same address as that given by his wife. However, the question of what weight is to be given to evidence is a matter for the Tribunal. The High Court has said as much on a number of occasions. For instance, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, Mason J said at page 41:

   In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

   Although his Honour’s statement was in the context of the exercise of a discretion, they are equally applicable to circumstances where there is a fact-finding exercise required by the statute of an administrative body or decision-maker.

4. Thus, in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court, when considering factual findings about country circumstances pertaining to an applicant for a protection visa, held that the weight to be given to such information was entirely a matter for the Tribunal. Those statements are qualified to some extent by the fact that the Tribunal must, in making its findings, as in the exercise of any power, act reasonably and rationally, so that even the weight given by the Tribunal to particular information might be such as to indicate unreasonableness and therefore might be a basis upon which its decision is impugned.

5. However, there was no such irrationality or unreasonableness in this case. While I accept that the applicant did put forward information which well supported his claim to have been living with his wife at the time of the grant of his visa, the Tribunal relied upon cogent evidence to the contrary. That included not only the birth certificate referred to earlier, but also the passenger arrival cards that were completed by the applicant’s mother and father when they arrived respectively in March and June of 2012. Those passenger cards both gave the applicant’s name as the contact in Australia and provided the address on the birth certificate as the proposed address for the duration of the stay in Australia. In my view, it was not irrational to place significant weight on that material. For those reasons, grounds 1 to 5 as they appear in the application, and 1 to 5 also in the written submissions, do not succeed.

6. Paragraph 6 in the applicant’s written submissions is that the Tribunal did not consider all of the documents before it, including those which showed that he and his wife lived as a couple at the same address, namely, the Hoppers Crossing address. That paragraph claimed that:

   vi)The MRT seems to have not considered all the documents before it, in particular which showed Navpreet Kaur and me as a couple living at the same address (Hoppers Crossing address). Some examples of such documents are contained in the Court Book at page numbers 142, 143, 146, 154, 330. After separation I went to live at an address in West Footscray (Court Book page number 373) and then I moved to Wodonga, where I am still living. I never lived at the Braybrook address, it was only my business address and my friends were living there.

7. It is no longer controversial that the failure by the Tribunal to consider corroborative material can constitute jurisdictional error. See, for example, the Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (“SZRKT”). Whether or not the failure to consider such evidence constitutes an error will depend upon a number of matters, including the cogency of that material.

8. However, the first issue is whether or not the Tribunal considered the information. The particular information relied upon by the applicant includes four documents which were sent by the applicant in support of his visa application. The first of those documents is a Medibank invoice, dated 15 February 2012, in the applicant’s wife’s name, giving the address at Hoppers Crossing. The second document was a Medicare card number advice, issued on 24 February 2012, showing the names of both the applicant and his wife, but without any address.

9. The third is a Form 80, or Personal particulars for character assessment, completed by the applicant’s wife on 15 February 2012 – this is at page 145 – which shows at question 17 the applicant’s wife’s current address as being the Hoppers Crossing address. Similarly, a form completed by the applicant, or at least on his behalf, showed at question 17 that his address was the Hoppers Crossing address. Another document, which I have averted to briefly earlier, was provided by the applicant at the Tribunal hearing, being a Medibank invoice in his name, dated 23 February 2012, and showing the Hoppers Crossing address.

10. It is true that none of these documents is expressly referred to in the Tribunal’s reasons for decision. However, that does not necessarily mean that they were not considered. The starting place for the determination of whether or not documents were considered is the obligation of the Tribunal to provide reasons for its decision. Section 368 of the Act relevantly provided that the Tribunal when it makes its decision has to provide a written statement that:

    a)sets out the decision of the Tribunal on the review;

    b)sets out the reason for the decision;

    c)sets out the findings on any material questions of fact;

    d)refers to any evidence or any other material on which the findings of fact were based.

11. It was explained by McHugh J in connection with the analogous provision in s.430 that the requirement on the Tribunal does not go so far in each case as to require it to set out a line by line refutation of each piece of evidence which might support a contrary conclusion to that at which it has arrived. Nevertheless, there have been instances, such as SZRKT, in which the Court has concluded from an absence of reference in a Tribunal’s decision to a particular piece of evidence that that piece of evidence was not considered. Whether or not such an inference is drawn is a matter of fact-finding for the Court depending on all of the circumstances before it. One of those circumstances might be the cogency of the particular piece of evidence and whether or not it is critical to the particular issue for determination by the Tribunal.

12. In this case it is clear to me from the Tribunal’s reasons that it was uncontroversial that the applicant had shared an address at Hoppers Crossing with his wife and that there was evidence that supported the fact that that continued up to and after the grant of the visa in April 2012. On a number of occasions, the Tribunal referred in its reasons to the address shared by his wife, or the marital home at Hoppers Crossing, see [15] and [20] of the Tribunal’s reasons. What, however, was critical to the Tribunal’s decision was not all of that information, but rather the information that went the other way and whether that ought to be accepted as overcoming or outweighing the material in support of the applicant’s claims, and thus this focus is highlighted by its reasoning at [24] to [26].

1. For those reasons I am not satisfied that the Tribunal overlooked any of the information that would have supported the applicant’s claim to have still been in a spousal relationship with his wife at the time of the grant of the visa. For that reason, it is not necessary to consider the more vexed question of whether if it had done so that might have constituted jurisdictional error. For those reasons the ground raised by the applicant in paragraph 6 of his written submissions is rejected.

2. Paragraph 5 is the same as paragraph 7 in the applicant’s written submissions and I will deal with them together. In paragraph 7 of his written submissions, the applicant argues that the Tribunal incorrectly did not give enough weight to his involvement in the community and his contribution to that community, both on a personal and business level, which would have warranted the exercise of discretion in his favour. There is no question that the Tribunal did take into account that contribution. It expressly referred to not only the information which gave evidence of that contribution, but also at [42] of its reasons accepted that that contribution had provided a benefit to the Australian community, particularly in the applicant’s current area of Wodonga where he resides and carries out his business.

3. Once again though, it is important to recall the statement of Mason J that absent any statutory indication to the contrary, the weight to be given to a particular matter in the exercise of statutory power is one for the decision-maker, that is in this case the Tribunal and not for the Court. For those reasons that ground is rejected.

4. Paragraph 5 in the written submissions in a sense gives an explanation for the fact that the applicant’s parents had written on the incoming passenger cards the address which was contained on the birth certificate for the applicant’s daughter. In my view, this amounts to the same type of ground as is evident in grounds 2 to 4 of the application that the Tribunal was wrong to make certain findings, and that amounts to an attack on the merits of certain aspects of the Tribunal’s decision and it does not constitute jurisdictional error.

Conclusion

1. I find that there was no jurisdictional error which affected the Tribunal’s decision and for that reason the application must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 9 August 2016