Singh v Minister for Immigration

[2015] FCCA 3372

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3372

Catchwords:

MIGRATION – Review of Administrative Appeals Tribunal decision – no grounds of appeal – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: SIMRANJEET SINGH

First Respondent:

Second Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 996 of 2015

Judgment of: Judge Vasta

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Brisbane

Delivered on: 7 December 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 26 October 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1,367.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 996 of 2015

SIMRANJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 26 October 2015, the Applicant, Simranjeet Singh, applies for judicial review of a decision of the Administrative Appeals Tribunal made on 1 October 2015.  That decision affirmed a decision of the delegate of the Minister to not give Mr Singh, in effect, a spousal visa. 

2. To qualify for such a visa, the criterion to be met is that the Applicant be in a genuine and continuing relationship with the sponsor.  Usually, that is a relationship of marriage but it can also be one of a de facto relationship.  That is, that it’s a genuine committed relationship where the persons are living together to the exclusion of others or who are not permanently separated but are still in such a relationship.

3. The facts before this court are that in December 2013, the Applicant discovered that his sponsor was pregnant to another man.  He then left the residence where he and the sponsor were cohabitating.  He has not seen the sponsor since until March of 2015 when the formal divorce papers had to be sorted out.  In April of 2015, the divorce was final.

4. The Applicant points to the fact that the application was made back in 2011.  At that time, there was a relationship which was, he said, one that would satisfy the criteria. 

5. However, it is not whether the relationship satisfying the criteria was evident at the time of the making of the application; it is whether that relationship is, in fact, in existence at the time of the consideration of the grant of the visa.

6. Such makes perfect sense, because, if it were any other way, anyone could simply say that they were married or in a relationship at the time of making the visa application and then, by the time that the visa application comes around, say, “Well, we’ve split but at that time, we were in a committed relationship”.

7. Such a scenario would defeat the purpose of the visa conditions.  So, it is difficult to see how the tribunal has made any form of error.

8. The application before this Court does not have any grounds of appeal.  There are no grounds upon which the application is sought.  Mr Singh is unrepresented and appears here today when, as I’ve done with every other person who has appeared on a first court date, gone through their grounds, told them what the procedure was. 

9. Mr Singh simply said that he relied upon the fact that they, that is he and the sponsor, were in a relationship at the time that he made the application.  When I explained to him what the effect of the law was, he did not seek to cavil with the effect of the law or the effect of the evidence.

10. It may end up being a cruel blow to Mr Singh, but it is what the law is in this country and however sympathetic I may be to Mr Singh’s plight, the point is that I have to uphold the law and not torture it so as to get it to somehow bring a result that is somewhat less distressing for all involved. 

11. My oath is to uphold the law.  The fact is that Mr Singh does not and could not ever comply or satisfy the condition for the spousal visa.

12. Therefore, even though this is a first court date, to my mind, there is no point in allowing this matter to go on any further because it will be ultimately doomed to fail. 

13. The Minister has asked for costs and costs ought follow but, in my view, it is a matter that the Court has, in effect, adjudicated of its own accord and, for that reason, the costs should be at that scale that is for a dismissal before the first court date. 

14. So I therefore dismiss the application with costs in the sum of $1,367.00. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 December 2015