Singh v Minister for Immigration

[2016] FCCA 332

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 332

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal, refusal of a partner visa – applicant’s marriage broken down – withdrawal of sponsorship – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5, 359A, 359AA
Migration Regulations 1994 (Cth)

Applicant: KARMJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3642 of 2014

Judgment of: Judge Driver

Hearing date: 18 February 2016

Delivered at: Sydney

Delivered on: 18 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms R Krishnan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to “Administrative Appeals Tribunal”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 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 3642 of 2014

KARMJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 5 December 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Singh, a temporary partner visa.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 22 January 2016.   

2. A short chronology of relevant events[1] is as follows:

   [1] taken in part from the decision record of the delegate at Relevant Documents (RD) 92

23.07.08	Mr Singh entered Australia as a dependent on a former spouse’s student visa.
12.05.12	Mr Singh and his former spouse divorced.
22.11.12	Mr Singh’s student visa was cancelled.
26.11.12	Application to the Tribunal for review of that decision lodged.
20.05.13	Mr Singh married Ms Z Youssef (sponsor)
17.06.13	Application for a Partner (Temporary)(Class UK visa) and Partner (Permanent) (Class BS) visa made with Department.
18.09.13	Application to Tribunal for review of cancellation of student visa is withdrawn.
11.12.13	Application for Partner visa refused by the delegate, who found Mr Singh did not satisfy clause 8920.211 of the Migration Regulations1994 (Cth) (Regulations).  The delegate found that Mr Singh was not the holder of a substantive visa at the time of the visa application, he had not applied within 28 days of his last substantive visa ceasing and there were no compelling reasons not to apply the Schedule 3 criteria.
21.12.13	Application for review to the Tribunal lodged.
28.10.14	Sponsor notified Department of withdrawal of sponsorship.
25.11.14	Mr Singh attended hearing before the Tribunal.
05.12.14	Fax received by Tribunal from Mr Singh advising that reconciliation with his sponsor failed and requesting that decision be made on the papers.
05.12.14	Tribunal affirmed delegate’s decision.

Tribunal decision

1. The Tribunal referred to the relevant provisions of the Regulations, namely clauses 820.211 and 820.221, which respectively set out some of the primary criteria to be satisfied as at the time of the visa application and the time of the decision.  It determined that the relevant issue for it to determine was whether, at the time of its decision, Mr Singh was the spouse of the sponsoring spouse.

2. On the evidence before it, the Tribunal accepted the marriage between Mr Singh and the sponsor was valid for the purposes of the Migration Act 1958 (Migration Act) as required by s.5F(2)(a) of the Migration Act.

3. However, prior to the hearing, the Tribunal had received advice from the sponsor that the marriage had broken down and that she was withdrawing her sponsorship[2].  This information was discussed with Mr Singh at the hearing and the Tribunal allowed Mr Singh further time to present evidence or make submissions.

   [2] RD 138 and 155 [19]

4. On 5 December 2014 Mr Singh, through his migration agent, informed the Tribunal that his attempted reconciliation with the sponsor had not been successful.  He asked for the matter to be dealt with on the papers[3].

   [3] RD 146 and 154 [10]

5. The Tribunal concluded that, in the circumstances, it was not satisfied that the parties were in a spousal relationship and therefore Mr Singh could not meet one of the requirements for the visa.  Accordingly, the requirements of clause 820.221 were not met.  There was no evidence that the alternative criteria under clause 820.221(2) or (3) were met or that Mr Singh had suffered family violence committed by the sponsor[4].

   [4] RD 155 [22] and [23]

6. Accordingly, Tribunal affirmed the decision not to grant Mr Singh a partner (Temporary)(Class UK) visa.

The present proceedings

1. These proceedings began with a show cause application filed on 29 December 2014.  Mr Singh continues to rely upon that application.  The application is supported by an affidavit filed with it which I received as a submission. 

2. The only evidence before me is the book of relevant documents filed on 2 March 2015. 

3. Mr Singh faced an obvious problem before the Tribunal.  His relationship with his wife had broken down.  She had withdrawn her sponsorship of him.  Those developments were fatal to his eligibility for the visa he sought.  Nevertheless, Mr Singh filed an application for judicial review on 29 December 2014. At a directions hearing on 19 February 2015 orders were made for Mr Singh to file any amended application by 20 April 2015 and to file submissions 14 days before the hearing.  Nothing further was filed by Mr Singh.

4. The first ground of review in the application complains that the information concerning the withdrawal of Mr Singh’s wife’s sponsorship should have been drawn to his attention. The short answer is that it was. I am satisfied that the Tribunal complied with its obligations pursuant to s.359AA of the Migration Act.

5. The second ground asserts that the Tribunal erred by not giving Mr Singh additional time to produce further evidence. The particulars refer to the Migration Regulations concerning family violence and children. However, Mr Singh was not making any claim of family violence, and there were no children of the relationship, hence, he did not need additional time to deal with those issues.

6. In his affidavit, Mr Singh states that he meets all the requirements for the class of visa he sought.  That is patently incorrect.  Mr Singh also asserts that he has a good case both on the merits and the law.  I disagree.  The rest of the affidavit addresses the grounds of review in the application.  The Minister deals with those grounds in his submissions in more detail.  I agree with those submissions. 

Ground 1- ‘The Tribunal erred in law by not adopting the procedure prescribed under s.57 of the Migration Act’

1. Mr Singh contends that the withdrawal of the sponsor was adverse information which, pursuant to s.57 of the Migration Act, should have been disclosed and his comments should have been sought before the Tribunal relied on such information.

2. Section 57 provides that information must be given by the Minister to an applicant which the Minister considers would be the reason, or part of the reason, for refusing to grant a visa and is specifically about the applicant or another person. The first point to note is that s.57 is not applicable to the Tribunal and the relevant corresponding provisions for the Tribunal are ss.359A and 359AA of the Migration Act.

3. The Tribunal was required to invite Mr Singh to comment on the information that his sponsor had withdrawn her sponsorship; but the Tribunal’s reasons disclose that it did so by raising the relevant information with Mr Singh at the hearing and giving him time after the hearing to comment on or respond to the information[5].

   [5] see s.359AA(1)(b) of the Migration Act

4. As noted above, Mr Singh’s response was to inform the Tribunal that his attempted reconciliation with the sponsor had not been successful and to request the Tribunal to deal with his application on the papers[6].

   [6] RD 146 and 154 [10]

5. Ground 1 does not disclose any arguable ground of review.

Ground 2- ‘The Tribunal failed to provide adequate opportunity to Mr Singh to adduce additional evidence and this resulted in miscarriage of justice and has vitiated the procedural fairness’

1. In the particulars to Ground 2, Mr Singh contends that the Tribunal failed to provide adequate time for him to “file his claim in relation to matters covered by clause 820.221(3)”.

2. Clause 820.221(3) provided[7]:

   (3)     An applicant meets this subclause if:

   (a) the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (b) either or both of the following circumstances applies

   [7] The current version of clause 820.221(3)(a) is in identical terms save for the reference to clause 820.211(3), which has been omitted

   ……

3. The remaining provisions refer to family violence and circumstances where the applicant has custody or joint custody or relevant orders relating to a child in respect of whom the sponsoring partner has been granted joint custody or access or has a relevant order.

4. However, there had never been any suggestion at any time from Mr Singh that he had been a victim of family violence, or that there were any relevant children of the marriage.

5. In the circumstances, the Tribunal was not obliged to allow Mr Singh additional time or opportunity to make any such claim.

6. I conclude that Mr Singh has no arguable case of jurisdictional error by the Tribunal. 

7. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules)..

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Singh claimed impecuniosity, but as has been repeatedly stated, that is not a reason for the court to refrain from make a costs order.

9. 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 $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 23 February 2016