Singh v Minister for Immigration

[2016] FCCA 257

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 257

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error established – writ of certiorari issued.

Legislation:

Migration Act 1958(Cth)

Migration Regulations 1994 (Cth)

Applicant: INDERJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 615 of 2015

Judgment of: Judge Vasta

Hearing date: 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Brisbane

Delivered on: 4 February 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing it decision dated 5 June 2015.

2. A writ of mandamus issue directed to the second respondent required it to reconsider and determine the applicant’s application for review made on 5 June 2015 according to law.

3. The first respondent pay the applicant’s costs of and incidental to the application fixed on the basis of the costs of a self-represented litigant.

4. The applicant pay the first respondent’s costs of and incidental to the adjournment of 20 January 2016 fixed in the sum of $2,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 615 of 2015

INDERJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application for review of a decision of the Administrative Appeals Tribunal on 2 July 2015.  The applicant made Application to this Court alleging three grounds.  They are:

   “1. The Second Respondent’s finding that the Applicant and his sponsor were lacking the expected level of commitment of a married relationship and not in a genuine relationship at the time that the decision was illogical and not based on inferences of fact support by the evidence;

   2.  The Second Respondent has made a jurisdictional error in taking into account the alleged motivation of the Applicant in his marriage to his sponsor;

   3.  The Second Respondent has made a jurisdictional error in failing to take into account the relevant consideration of the Applicant suffering domestic violence committed by the sponsor, and the effect of this on the relationship between the Applicant and the sponsor at the time of the decision.”

2. The chronological background seems to be that the applicant had arrived in Australia, as a citizen of India, as the holder of a student visa. 

3. That visa was due to expire on 29 April 2012. 

4. Three days beforehand, the applicant lodged an Application for a partner visa.  The applicant was sponsored by his wife, Tina Marie Gardiner-Hudson. 

5. The delegate was not satisfied that the applicant and the sponsor were in a spousal relationship at the time of the application (that is, on 26 April 2012), or since that time, and, therefore, did not meet the requirements of the Migration Regulations 1994. The delegate gave his decision on 8 November 2013.

6. On 5 June 2015, the then Migration Review Tribunal, following a hearing that day, affirmed the delegate’s decision to refuse to grant the visa. 

7. To satisfy the requirements of the visa, not only does the Tribunal or the delegate have to be satisfied that the applicant and the sponsor were in a spousal relationship as at the time of the applicant, they also have to be in such a relationship at the time of the hearing. 

8. There are a number of the bits of evidence that are concerning. Firstly is the sheer coincidence of the marriage taking place so close to the time that the student visa was to be finalised, that the applicant himself had said to the sponsor that “I will be having to leave here because my visa is running out.” to which the sponsor seemingly suggested, “well, if we get married, you will be able to stay with me”. 

9. On my view of the evidence, it really is of little surprise that the Tribunal found at the time that there was no spousal relationship in existence.  Whilst there was quite a deal of evidence before the Tribunal as to the circumstances surrounding the spousal relationship, there was one matter especially that the Tribunal seemed to hang their hat on. 

10. It is how the Tribunal dealt with this one matter that causes me concern.

11. What I have to do in looking at this application is to ensure that the Tribunal has exercised its jurisdiction properly.  If it has not, then there will be a jurisdictional error.

12. As to the grounds that the applicant has put in his application, it would seem to me that it could not be said that the decision was illogical and not based on inferences of fact supported by the evidence. 

13. It could not be said that taking into account the motivation of the applicant in his marriage to his sponsor was an error, and certainly, it may not necessarily be an error in failing to take into account the domestic violence aspect. 

14. I do not see that there are, in effect, any substances in the grounds.

15. However, the applicant has come here today.  He is unrepresented.  He did have an interpreter, but, at the last occasion the matter was before me, dispensed with the services of the interpreter. 

16. The way that the Tribunal ended up looking at the application was that they concentrated solely upon whether at the time of the application being made, there was a spousal relationship. 

17. The Tribunal found that there was no spousal relationship, and so, therefore, did not consider whether there was a continuing spousal relationship, which is the second part of what it is that the Tribunal had to consider. This is logical, because the Tribunal had already found that the first part did not apply.  But this failure to consider the “second part” is central to my decision today.

18. When the Tribunal looked at the merits, this is what was said at paragraph 18:

    “The applicant provided the department with a letter from Coast2Bay Housing Group stating he commenced living with the sponsor at unit 12, 73 to 75 Lower King Street, Caboolture, on 19 June 2012.  No additional explanation was provided to the department. 

    (19)  The applicant told the Tribunal he moved in with the sponsor on 14 February 2012, but did not tell Coast2Bay Housing Group until later to avoid the rent going up.

    (20)  The earliest date the applicant is recorded as living at the address in correspondence provided to the Tribunal from Coast2Bay Housing Group is 30 May 2012.

    (21)  The applicant also pointed to correspondence that was sent to him, sent to unit 12, 73/75 Lower King Street in late March and early April 2012.  However, his Vodafone accounts were sent to a different address.  

19. The Tribunal said that, on balance, they:

    “were not satisfied that the parties maintained a joint household at the time of application, saying that, ultimately, the Tribunal considers that the most reliable evidence is that from Coast2Bay Housing Group, and the earliest date that places the applicant as living at unit 12, 73/75 Lower King Street, Caboolture, is 30 May 2012.” 

20. The Tribunal said that it found:

    “the applicant’s explanation that they did not tell Coast2Bay Housing Group of the earlier date to avoid the rent going up to be unpersuasive.  The applicant has clearly requested and obtained a letter from Caost2Bay Housing Group, addressed to the Department of Immigration.  It provided a date of 19 June 2012.  The applicant then gave that letter to the department.  It is hard to escape the conclusion that if that date was material and correct, he would not have forwarded the letter to the department in that form. The Tribunal is prepared to accept that the applicant may have been living there from 30 May 2012 when the rent was adjusted.  But is not prepared to accept he was living there at 26 April 2012 or an earlier date”. 

21. The Tribunal accepted the social aspects of the relationship. 

22. The Tribunal had some doubts as to the commitment to each other, however, but it seems to me on a fair reading of the Tribunal’s decision that it is that evidence from the Coast2Bay Housing Group letters that suggest that the applicants were not living at that residence at the time to have been the lynchpin upon which it made its decision.

23. The applicant, in effect, maybe somewhat inelegantly, has said to this Tribunal that the Tribunal has made errors in the way in which it has approached the whole question of the letters that are from Coast2Bay Housing Group. 

24. If one goes to the court book, at page 78 of the court book the following letter appears.  It is from Coast2Bay Housing Group, dated 25 July 2012, addressed to the Department of Immigration,

    “RE:  INDER JIT SINGH ACCOMMODATION STATUS. 

    We wish to confirm that Inder Jit Singh is currently listed as an occupant at one of our rental properties at 12/73-75 Lower King Street, Caboolture.

    Our records show that Inder commenced living at the said property with his wife Teena Singh on 19 June 2012 and his income has been included in the assessment of the rent which we receive at Coast2Bay Housing Group. 

    Please contact our Caboolture office phone [phone] if you require any further information regarding their tenancy.”

25. At page 221 of the court book and following there are other documents from Coast2Bay Group, however, this one, which seems to be dated 17 July 2012, reads:

    “Thank you for providing your recent statement of income, this has enabled a new rent assessment to be conducted.  As a result of this your rent has increased. 

    The details regarding your new rent are as follows –

    ·   Rent $433.36 per fortnight commencing 30 May 2012…”

26. Straightaway there is an inconsistency between those two letters, where one has spoken about the applicant living there from 19 June 2012, whilst the other letter says that the rent will increase because of his income as at 30 May 2012, which is some three weeks before, on the records, he commenced living there.

27. The applicant submitted here that his answers to the Tribunal were disregarded because there was an erroneous interpretation of the letters. What has happened in the meantime between the handing down of the decision and today’s date is that a letter has been procured by the applicant from Coast2Bay Housing Group which informs that, and I quote from the letter, which is an exhibit to the affidavit of the applicant filed in this Court on 1 February:

    “…Our records show that on the 19^th June 2012 Teena provided us with evidence (marriage certificate) that Inder (her husband) commenced living at the above property at the end of April 2012 because they were now married.  Teena originally informed us on the 27^th March 2012 that she would be getting married.  As Teena had to change her details with the Department of Housing to show that she was now married, we added Inder as an occupant, as a Community Housing provider.  We don’t require all occupants to be on the lease as long as we are aware of all occupants in the household.  As a Community Housing Organisation we also base rent on all occupants’ income and in this case charged rent based on both Teena and Inder’s income from the 30^th May 2012 once evidence of income was received…”

28. There is more to the letter, but what that does is corroborate what the applicant says was the true situation.  Whilst that letter could, and should, have been before the Tribunal, it seems to me that the contradiction was well and truly apparent to the Tribunal at that time and there was no explanation as to how that contradiction of not living there until 19 June 2012 and paying rent from 30 May 2012 could have been addressed. 

29. The information that has now been obtained clarifies the situation and it is corroborative of what it is that the applicant did say to the Tribunal.

30. Whilst the Tribunal has said that the applicants did not have a spousal relationship as at the time of the application, that conclusion was based totally upon an incorrect conclusion as to the effect of the letters from the Coast2Bay Housing Group. 

31. Unfortunately, the Tribunal did not go on to talk about whether the relationship had continued and what the effect of the domestic violence situation had been. 

32. Quite frankly, overall, on the evidence it could well have been that the Tribunal could have come to a similar conclusion, but the fact is that it has not done so and, in my view, the erroneous way in which the Tribunal has looked at the letters of the Coast2Bay Housing Group and its reliance on those letters has been the foundation for its rejection of the application.

33. It is my view that there has been a jurisdictional error committed.

34. So for those reasons I am allowing the application and I issue a writ of certiorari and quash the decision. 

35. I will send it back to the Administrative Appeals Tribunal to be looked at again properly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:11 February 2016