Singh v Minister for Immigration
[2016] FCCA 1171
•27 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1171 |
| Catchwords: MIGRATION – Visa – partner visa – “spouse” – “genuine and continuing relationship” – allegation of bias – no evidence of bias – weight to be given to evidence – impermissible merits review. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 476 Migration Regulations 1994 (Cth), reg.1.15A(3) & Schedule 2, cl.820.211(2)(a) |
| Cases cited: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 |
| Applicant: | TALWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 301 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 2 May 2016 |
| Date of Last Submission: | 2 May 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 27 May 2016 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Solicitors for the Respondents: | Ms Helsdon for Sparke Helmore Lawyers |
ORDERS
The application filed 19 August 2015 is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 301 of 2015
| TALWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) against a decision of the Administrative Appeals Tribunal dated 4 August 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (‘the partner visa’).
The applicant is an Indian citizen born in 1987. He first arrived in Australia in June 2009 as a dependent of his then wife, who had travelled to Australia on a student visa. That marriage resulted in divorce on 17 November 2012, and the applicant married Ms Kylie Anne Nilson in March 2013. It is Ms Nilson who was his sponsor for the partner visa which was refused by the delegate. The applicant made his application for the partner visa on 15 August 2013. On 2 October 2014, the delegate refused to grant the partner visa having decided that the applicant did not satisfy the requirements of cl.820.211(2)(a) of the Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[1]
[1] Court Book (‘CB’) pp 127-148.
On 20 October 2014, the applicant applied for a review of the delegate’s decision. The Tribunal wrote to the applicant on 21 May 2015 inviting him to attend a hearing with his wife. A written submission was made to the Tribunal on behalf of the applicant by his registered migration agent. This was prior to the Tribunal hearing. The hearing took place on 23 July 2015 and the applicant appeared assisted by both an interpreter and a registered migration agent. He gave evidence, as did the sponsor. The Tribunal affirmed the decision of the delegate on 4 August 2015.
Legislative framework
In order for the applicant to qualify for the partner visa, it was necessary that he satisfy cl.820.211(2)(a) of Schedule 2 to the Regulations. That clause states as follows:
“(2)An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner”
It is also necessary that the applicant meet the definition of ‘spouse’ in s.5F of the Act:
“(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.”
In order to reach a conclusion as to whether or not a person is a spouse, it is necessary to consider all of the circumstances of the relationship, including, the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and, the nature of the persons commitment to each other.[2]
[2] Regulation 1.15A(3)(a)-(d) inclusive of the Regulations.
Tribunal decision
The Tribunal accepted that the parties were legally married. It identified the issue in dispute as being the question of whether or not the applicant was in a genuine and continuing spousal relationship with the sponsor. It had regard to cl.821.211(2)(a) of Schedule 2 to the Regulations and the definition of ‘spouse’ in s.5F of the Act. It gave consideration to those matters referred to in reg.1.15A(3) when considering all of the circumstances of the relationship. It gave close consideration to the financial aspects of the relationship, including payment for rent, bank accounts, and the sponsor’s Centrelink payments.[3] It gave particular weight to the lack of knowledge the applicant and the sponsor had about each other’s financial affairs.[4] It was not satisfied that the evidence demonstrated a pooling of financial resources and found that their mutual conduct with respect to finances was not “commensurate with spouses in a genuine and continuing relationship”.[5]
[3] CB pp 251-252.
[4] CB p 252.
[5] CB p 252 at [40].
The Tribunal was not satisfied that the evidence demonstrated that the applicant and the sponsor were in a genuine and continuing relationship as there was scant evidence of them conducting themselves socially as a couple.[6] In particular, the Tribunal gave little weight to the statutory declaration of the persons who claimed to have observed the parties as a married couple, because of the fact that the parties did not appear to have socialised frequently or regularly with those persons.[7]
[6] CB p 253.
[7] CB p 253.
The Tribunal considered the nature of the household. It concluded that this facet of their relationship did not assist the applicant, because the parties did not share a bed and the applicant did not appear to have made any contribution to doing work around the house.[8]
[8] CB p 253.
The Tribunal was not satisfied that the evidence taken as a whole established a level of commitment to the relationship on the part of the applicant that was consistent with a genuine and continuing relationship. Having considered all of those matters, the Tribunal was not satisfied that the applicant was the ‘spouse”’ of the sponsor as defined by s.5F of the Act. For that reason, the applicant could not satisfy the requirements of cl.820.211(2)(a).
Submissions
Applicant’s submissions
The applicant made brief oral submissions before me. Those submissions were directed primarily to his dissatisfaction with the outcome of proceedings, rather than establishing a basis for judicial review. He told the Court that he has a genuine relationship with his wife and he could not understand why it had not been considered as such by the Tribunal. He submitted that if you were to ask any husband and wife a series of questions about each other, they would not necessarily get them all correct, but that did not mean they did not have a genuine relationship. He complained that the parts of the evidence he and his wife agreed with each other were given less weight than those aspects of their evidence on which they were inconsistent. He submitted that the Tribunal had erred by not coming to their home to see the way in which they live. He doubted whether the Tribunal would have approached its task in the same way if his wife had been of Indian origin. He said that he took little interest in the nature of his wife’s religious beliefs at the time that they got married, and in effect that the Tribunal was wrong to place weight on his lack of knowledge in that regard. He reiterated that he and his wife had a joint bank account and that he was paying the bills, including health insurance.
First respondent’s submissions
The first respondent submits that the matters raised by the applicant were essentially a request for an impermissible merits review. It submits that he has failed to establish jurisdictional error and for that reason, the application should be dismissed. All of the relevant matters were canvassed by the Tribunal in its decision and it does not appear to have failed to have regard to any relevant factor.
The first respondent submitted that there was no error in the Tribunal failing to visit the applicant and his wife in their home in order to gather evidence of their relationship. It notes that there is no general duty on the Tribunal to make enquiries and the onus was on the applicant at all stages to present his own case to the Tribunal. Ms Helsdon submitted that it was perfectly appropriate for the Tribunal to take into account the level of involvement that the parties had with respect to each other’s religious activities and beliefs and the applicant’s lack of knowledge of his wife’s denomination. These matters were directly relevant to both the social aspects and the level of commitment between the parties. She submitted that there was no evidence that the Tribunal had been motivated by bias in making the finding it had about the religious aspects. She noted that it would not be possible to reach such a conclusion in the absence of the transcript of the proceedings and that had not been tendered by the applicant.
Considerations
In so far as the applicant complains that the Tribunal did not accord sufficient weight to some aspects of his evidence, and too much weight to other aspects, his submission cannot succeed. The question of weight to be given to a piece of evidence, or a body of evidence, is entirely a matter for the Tribunal. It is entirely for the Tribunal to identify such material as it finds relevant and to give it the appropriate weight. It is not the role of this Court to substitute its own view for that of the Tribunal in this regard.[9]
[9] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
The complaint made by the applicant in his grounds alleges a jurisdictional error on the basis that the Tribunal was wrong to find that his lack of interest in the sponsor’s church and religion indicated a lack of support for her. In reality, this is a complaint as to a finding of fact, or in other words, a complaint that goes to the merits of the decision. The same can be said about the applicant’s complaint that the Tribunal was wrong to place emphasis on the fact that the sponsor did not pool her financial resources with him, given the relatively minor amount she received by way of Centrelink benefits. This too is a complaint as to the merits of a factual finding. Errors of fact are not jurisdictional errors.[10] As the Full Court of the Federal Court said in NAHI[11]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
[10] Abebe v The Commonwealth of Australia (1999) 197 CLR 510.
[11] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
The grounds filed by the applicant make a complaint that the Tribunal was biased in its approach to the significance of his lack of knowledge of the sponsor’s religion. He did not articulate with any degree of specificity in his oral submissions why he said that was the case. The closest he came to doing so was his submission that if his wife had been Indian, he would not have been likely to have been asked the questions that he was. A fair reading of the reasons of the Tribunal does not suggest that it was motivated by bias, either actual or apprehended. Further, the first respondent points out that if the applicant’s wife had in fact been Indian, he would not have been in a position to apply for a partner visa, which requires an applicant to be married to an Australian citizen, an Australian resident, or an eligible New Zealand citizen. The Tribunal was required to consider the range of matters it did, and its reasons do not suggest that it approached any of the issues before it with a closed mind. Further, the transcript of the Tribunal hearings is not before this Court. There is no evidence before the Court of the manner in which the Tribunal conducted the hearing, or the nature of the questions asked, except in so far as those matters are described in the reasons of the Tribunal.
As was observed in VFAB:[12]
“A case of actual bias is seldom made out by reference solely to the reasons for a decision. A case may, however, be made out by reference to these reasons, as well as the decision-maker’s attitude and conduct (as, for example, in the course of a hearing preceding the decision): see, e.g., Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 (“Sun Zhan Qui”), at 134-135 per North J. The Court has inferred actual bias by prejudgment from various factors, including a decision-maker’s hostile approach to a party in a hearing, and a failure on his or her part to enquire into or obtain readily available and critically important information: see, e.g, Sun Zhan Qui, at 135 and SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591, at [26]-[27]. As Lockhart J noted in Sarbit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 (“Sarbit Singh”) at 9, any fact or circumstance that is said to indicate actual bias must be considered in the context of the whole case.”
[12] VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [21].
I am not satisfied that there is any evidence that the reasons of the Tribunal was affected by either actual or apprehended bias. I note however, that this aspect of the applicant’s grounds was not really developed in the course of his oral submissions. In reality, his complaint appears to be with the outcome of the hearing, and the weight accorded to various aspects of the evidence, and the merits of the ultimate findings of fact.
These are not matters that establish jurisdictional error on the part of the Tribunal. I am unable to find that the Tribunal did fall into jurisdictional error. On the whole of the evidence before it, I am satisfied that the findings were at least open to the Tribunal.
I dismiss the application and the make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 27 May 2016
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