Singh v Minister for Immigration

[2016] FCCA 592

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 592

Catchwords:
MIGRATION – Administrative review – review of Administrative Appeals Tribunal decision – no grounds established – no appearance by applicant – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001, r.13.03C(1)(e)

Applicant: BALWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 865 of 2015

Judgment of: Judge Vasta

Hearing date: 14 March 2016

Date of Last Submission: 14 March 2016

Delivered at: Brisbane

Delivered on: 14 March 2016

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Counsel for the Respondent: Mr Hawker

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 17 September 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 865 of 2015

BALWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant has been called three times and has not appeared before the Court today. He last appeared before me on 7 December 2015 when I listed the matter for final hearing. I gave the Applicant a number of directions on that day for the filing of material. In the circumstances, I feel it is appropriate for me to proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001and hear the matter on the merits.

2. On 19 June 2012, the Applicant lodged an application for a spousal visa.  He alleged in that application that he was sponsored by his wife Ms Asina Sullivan.  That woman also lodged documentation in support of the application. 

3. On 9 May 2014, delegate of the First Respondent refused the grant of the visa and that caused the Applicant to go to the Administrative Appeals Tribunal.  The hearing before the Tribunal took place on 31 July 2015.  There was a request for further information on 5 August 2015.  There was a response on 18 August 2015 and on 20 August 2015 the Tribunal affirmed the decision not to grant the visa.

4. On 17 September 2015 the Applicant lodged the present application. 

5. The decision by the Administrative Appeals Tribunal was a decision where the Tribunal had come to the conclusion that the relationship between Mr Singh and Ms Sullivan was not genuine and it was not continuing. 

6. On the evidence before the Tribunal, the Applicant, Mr Singh, had been in Australia since 2009 and was studying business management but had ceased those studies in October 2012.

7. He said that he had decided during the school break to go to the town of Lightning Ridge for a holiday with the idea of looking for work and there he met Ms Sullivan.  He said that they decided that they had a very good relationship after that meeting and decided very soon afterwards that they would get married. 

8. They did get married.  They got married in Sydney but since that time Ms Sullivan has remained in Lightning Ridge while Mr Singh has been in Brisbane working as a taxi driver.

9. There was evidence also from Ms Sullivan which did seem to contradict that of Mr Singh in a number of ways.  Ms Sullivan was of the view that they had met and gotten married within two to two and a half weeks of meeting and she repeated that answer quite a number of times when talking to the Tribunal. 

10. That seems to contradict Mr Singh’s evidence that it happened over a number of months.  When this aspect was eventually looked at, upon the Tribunal asked for further information, Ms Sullivan wrote that,

    “When I said I married within two and a half weeks of our first meeting I meant we had established an initiate relationship and from that time onwards I considered myself married to Mr Singh.  The formal marriage took place in Sydney after a few months.”

11. Another aspect of note to the Tribunal was that Mr Singh had said that upon getting married in Sydney that they left, as it were, straight away.  Ms Sullivan had said that they had stayed in Sydney for quite some time afterwards. 

12. The explanation then given to the Tribunal was that Mr Singh had left Sydney the day after getting married and Ms Sullivan stayed in Sydney with friends.  Even that explanation, as far as the Tribunal was concerned, was not indicative of two persons who had just gotten married.  Objectively, it seems strange that instead of spending their honeymoon together, that the bride, in fact, would simply stay on and have a time with her friends.

13. Of greatest concern to the Tribunal was that the two of them knew very little about each other.  It turns out that Ms Sullivan is on a disability pension because she suffers schizophrenia.  Mr Singh, the Applicant, did not know about any medical condition that she had.  In effect, he told the Tribunal that he thought it was rude to ask what specific condition she had.  He was content knowing that she was simply on a disability pension. 

14. Whilst the Tribunal said it is not unusual for married people to live in different cities, there usually is a reason for it. It does turn out that Ms Sullivan said that she stayed in Lightning Ride because she wanted to be with her family and Mr Singh couldn’t get work there, whereas he could get work in Brisbane. But Ms Sullivan later told the Tribunal that she has a strained relationship with all of her family in Lightning Ridge. 

15. So the question still was why weren’t the two of them cohabitating if this was a genuine marriage.  That becomes even starker when one looks at the current state of affairs that Ms Sullivan had been evicted from her housing commission unit and had been staying in a shelter for the six weeks heading up to the Tribunal hearing.

16. The Applicant, Mr Singh, did not know that at all and one would think if the two of them were married and in a genuine relationship that there would be no reason why Ms Sullivan would not be living with Mr Singh here in Brisbane considering that she is, in effect, homeless. 

17. The Tribunal also looked at the fact that there was no pooling of resources and there was no other indication of the two of them having a shared life.  On that basis, the Tribunal was not satisfied that they were in a genuine and continuing spousal relationship. 

18. The Applicant lodged four grounds for the judicial review and they are

    “1. Procedural impropriety: Bias. It is alleged there was apparent bias in the decision of the decision maker. The Tribunal has not taken into consideration the cultural differences between the applicant and the applicant spouse. 

19. This ground has no merit.  To make an allegation of bias there really does have to be something that is concrete that can show that the Tribunal, despite whatever evidence it was going to have before it, was always going to come up with that particular decision.  Nothing of the sort has been shown here.  I do not consider the ground has been made out.

    “2. Jurisdictional Error – The Tribunal made jurisdictional error that I and my wife do not have mutual commitment to the shared life to the exclusion of others.

    3. Jurisdictional Error The Tribunal made further jurisdictional error by not giving proper consideration and proper weight to my future plans.

    4. Error of law The Tribunal made an error of law that I and my wife do not have a shared life to the exclusion of others.”

20. I will deal with all three grounds of these grounds at once because they all show a misunderstanding of what constitutes a jurisdictional error.

21. In a case such as this, to find a jurisdictional error, the Applicant must show that, on the evidence that was before the Tribunal, the Tribunal could not have made any other decision other than that which the Applicant says had to be made.  On the facts before the Tribunal that I’ve alluded to earlier in these reasons, it is demonstrated clearly that the conclusions made by the Tribunal were well and truly open to them.  If those conclusions were open to the Tribunal, then there has been no jurisdictional error.

22. The grounds really were an application for what would be an impermissible merits review.  Therefore, I do not think there is any merit in any of those grounds.  Having looked at the whole of the decision, as I must because the Applicant was before me unrepresented, I have looked through the decision, I cannot see that there is any jurisdictional error whatsoever. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  21 March 2016