Singh v Minister for Immigration

[2015] FCCA 3214

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3214

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – application for a Partner (Residence Class) (Class BS) (Subclass 801) visa – consideration of cl.801.221 of the Migration Regulations 1994 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 5F(3), 65, 359AA

Migration Regulations 1994 (Cth), reg.1.15A, Sch 2: sub-cls.801.221(2), 801.221(2A), 801.221(3), 801.221(4), 801.221(5), 801.221(6), 801.221(8)

VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1

Applicant: MAHAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1855 of 2014

Judgment of: Judge Hartnett

Hearing date: 22 September 2015

Delivered at: Melbourne

Delivered on: 4 December 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,236.35.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1855 of 2014

MAHAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of the decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) on 5 September 2014 to affirm a decision of a delegate of the First Respondent on 10 July 2013 to refuse to grant the Applicant a Partner (Residence Class) (Class BS) (Subclass 801) visa (“the visa”) under s.65 of the Migration Act 1958 (Cth) (“the Act”).

2. The single ground of application is as follows:-

   “The MRT erred in not giving consideration to the evidence that the Applicant, being myself had a genuine, credible relationship with my Sponsor being my spouse who is now deceased.  Accordingly MRT failed to give consideration to the evidence as a matter of law.”

3. The First Respondent opposes the application and seeks its dismissal, together with an order for costs in its favour.

4. On 2 December 2014, Registrar Allaway made orders by consent which included that the Applicant file and serve any amended application, including any additional grounds of review with complete particulars of each ground and, further, file and serve written submissions prior to the final hearing.  No amendment of the application has been filed and nor have written submissions been filed or served by the Applicant. 

5. The First Respondent relies upon an outline of submissions dated 15 September 2015 and there is also before the Court the documents as contained in the court book which are evidence in the proceedings.

6. The Applicant applied for the visa on 5 May 2011 on the basis of his relationship with his sponsor. At that time (Class BS) contained only one subclass, (Subclass 801) Partner. The criteria for the grant of this visa is set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations"). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter, the primary criteria include cl.801.221.

7. The delegate refused to grant the visa on the basis that the Applicant did not satisfy cl.801.221(2) of the Regulations because the delegate was not satisfied on the evidence that the Applicant and sponsor were jointly committed to a genuine and ongoing relationship, and accordingly found that the Applicant was not the ‘spouse’ of the sponsor, as defined in s.5F of the Act.

8. The Applicant applied for review of the delegate’s decision on 18 July 2013.  The Applicant appeared before the Tribunal on 28 August 2014 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Sanjeet Kumar and Suljit Singh.  The Applicant was represented before the Tribunal by his registered migration agent.

Background

1. The Applicant was born in India on 29 August 1984.  He was 27 years old at the time the visa application was lodged.  He stated he had never been married before.

2. The Applicant was sponsored in connection with a visa application by Ms Emma Jane Tamme, who was 32 years old at the time the visa application was lodged and an Australian citizen.

3. The visa application, as noted by the Tribunal in its statement of decision and reasons of 5 September 2014 (“the decision record”), claimed that the Applicant and the sponsor first met at a mutual friend’s party on 20 August 2010 and they began a relationship five months later.  It also states (in a contradictory fashion) that they decided to marry on 20 December 2010 and were married in Melbourne on 31 January 2011. 

4. The Applicant was granted a Partner (temporary) visa on 6 July 2012.

5. The Department of Immigration and Citizenship’s (“the Department”) file which was before the Tribunal included a copy of a certificate of marriage which shows the parties married on 13 January 2011 in Melbourne. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a) and as determined by the Tribunal.

6. Section 5F of the Act is as follows:-

   “Spouse

   (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (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.”

   (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provisions in relation to the determination for different purposes whether one or more of those conditions exist.

7. The evidence before the Tribunal was that the sponsor was deceased. The Applicant presented the Tribunal with the sponsor’s death certificate during the hearing, which confirmed that she had passed away on 22 June 2013. The Applicant claimed that the sponsor was, before her death, his spouse within the meaning of the Regulations.

8. The Tribunal as set out in paragraph 23 of its decision record, determined that the principal issue before it was whether the Applicant met the exception contained in sub-cl.801.221(5). As the sponsoring spouse had died after the grant of the sub-cl.820 (Spouse) visa, the Tribunal considered whether the provisions of cl.801.221(5) applied.

9. An applicable time of decision criterion for a sub-cl.801 visa was that the Applicant met the requirements of sub-cls.801.221(2),(2A), (3), (4), (5), (6) or (8) of sch.2 to the Regulations. As correctly determined by the Tribunal, the relevant subclause in this case was (5). It provided as follows:-

   “(5) An applicant meets the requirements of this subclass if the applicant:

   (a) is the holder of a Subclass 820 visa; and

   (b) would meet the requirements of subclause (2) or (2A)

   except that the sponsoring partner has died; and

   (c) satisfies the Minister that the applicant would have

   continued to be the spouse or de facto partner of the

   sponsoring partner if the sponsoring partner had not

   died; and

   (d) has developed close business, cultural or personal ties in

   Australia.”

10. For the purposes of sub-cl.801.221(5)(b), the relevant subclause was (2).  It relevantly provided that the Applicant is the spouse of the sponsoring partner.

11. Regulation 1.15A of the Regulations made provision for the purposes of s.5F(3) of the Act. It provided that the Minister must consider all 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 person’s commitment to each other.

12. As set out in paragraph 26 of the decision record, the Tribunal was not satisfied on the basis of the material before it that the Applicant was the spouse of the sponsoring partner within the meaning of s.5F of the Act and reg.1.15A of the Regulations and would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died. It is the Tribunal’s finding on the “spouse” issue which is the sole basis for the Applicant’s challenge to the Tribunal’s decision.

Tribunal Hearing 

1. The Tribunal correctly identified the issue as being whether the Applicant satisfied the requirements of sub-cl.801.221(5). The Tribunal was satisfied that the Applicant was the holder of a subclass 820 visa, thereby satisfying subparagraph (a) of sub-cl.801.221(5). The Tribunal was, however, not satisfied that the sponsor was, before her death, the Applicant’s spouse. Thus, the Tribunal was not satisfied the Applicant met the requirements of paragraphs (b) and (c) of cl.801.221(5).

2. Further, the Tribunal was not satisfied that the Applicant had developed close business, cultural or personal ties in Australia as required pursuant to sub-cl.801.221(5)(d)  The Tribunal made this finding on the basis of the Applicant’s own evidence at the hearing. 

3. The Tribunal said in paragraph 45 of its decision record:-

   “Further, the applicant’s evidence in the hearing was that he had no close business, cultural or personal ties which he had developed in Australia.  Accordingly, the applicant does not meet the requirement in clause 801.221(5)(d).”

4. As correctly stated by Counsel for the First Respondent, the requirements of sub-cl.801.221(5) are cumulative. An Applicant must satisfy each of the requirements of paragraphs (a) to (d) in order to satisfy the requirements of sub-cl.801.2221(5).   The Tribunal was not satisfied that the Applicant satisfied either paragraphs (b) and (c), that is the sponsor had not been his “spouse”;  or paragraph (d), that is the Applicant had not developed close business, cultural or personal ties in Australia.

5. Because the Tribunal had two independent bases for its conclusion that the Applicant did not satisfy the criteria for a (Subclass 801) visa, the Applicant is required to establish that jurisdictional error affects both of those bases.  As the Full Court of the Federal Court explained in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs, a decision of the Tribunal should be upheld, notwithstanding error affecting an aspect of the Tribunal’s reasons, where the reasons:-

   “…also disclose that there is another basis on which the Tribunal concerned found against the person applying for the visa.”[1]

   [1] [2005] FCAFC 1, 23 Gray J, and 45 Sundberg and North JJ

6. In the judicial review application before the Court, the Applicant challenges only the Tribunal’s approach to the spouse issue as relevant to the requirements of paragraphs (b) and (c).  The Applicant does not challenge the Tribunal’s approach and determination in respect of the requirement at paragraph (d).  On the evidence before it, it was open to the Tribunal not to be satisfied that the Applicant had developed close business, cultural or personal ties in Australia.  Thus, the application for judicial review should be dismissed and without the necessity for more to be said.

7. However, in respect of the Applicant’s ground of review as pleaded, I note that that ground is unparticularised, and that the Applicant failed to file any submissions or provide any other cogent explanation in support of that ground.

8. The Tribunal said in paragraph 27 of the decision record:-

   “In forming an opinion whether they are in a married relationship including whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together or do not live separately and apart on a permanent basis, the Tribunal has had regard to all of the circumstances of the relationship, including evidence of THE financial and social aspects and the nature of the applicant’s and sponsor’s household, and their commitment to each other as required by the legislation discussed earlier in these reasons.”

9. The Tribunal then proceeded to consider each of those elements under their relevant headings in a comprehensive way, taking into account the claims made by the Applicant and the evidence put before the Tribunal.  The Tribunal found numerous difficulties in the Applicant’s evidence and concluded that the Applicant’s marriage to the sponsor was solely for the purpose of obtaining the visa.  The Tribunal noted the evidence before it being strongly suggestive that the applicant and sponsor were in a contrived relationship. 

10. The Tribunal found the Applicant’s evidence in the hearing to be “vague, limited and confusing”.  In respect of the Applicant’s apparent lack of knowledge of the sponsor’s criminal history, the Tribunal found it implausible that if the Applicant and sponsor were residing together and were in a genuine spousal relationship, that the Applicant would not be aware that the sponsor was charged by the police and appeared before court in relation to numerous offences as set out in paragraph 41 of the decision record.

11. The Tribunal considered that the Applicant had provided limited evidence that he and the sponsoring partner had any joint liabilities, or that they pooled their financial resources.  On the evidence before it, the Tribunal was not satisfied the Applicant and sponsor had a joint financial relationship such as would be anticipated of parties in a spousal relationship.

12. When considering the nature of the household, the Tribunal noted that the Applicant had provided, amongst other items of evidence:-

    a)a residential tenancy agreement for a property at Preston, dated 23 July 2012, which referred to Mahar Singh and Emma Singh as tenants; and

    b)residential and services agreements for the applicant and Emma Singh respectively at Trentleigh Lodge in Dandenong North for a short stay between 16 to 23 July 2012.

13. The Tribunal was not satisfied, on the evidence before it, that the applicant and sponsor maintained a household.

14. The Tribunal considered the four short statutory declarations provided by third parties, and a bundle of photographs showing the Applicant and the sponsor in various settings when considering the social aspects of the relationship.  The Tribunal also heard oral evidence from an alleged friend of the Applicant who gave evidence to the effect that he had, “met the sponsor two or three times two years ago”.

15. However, the Tribunal weighed that evidence with other evidence that suggested there was limited evidence that the Applicant and the sponsor represented themselves, and were accepted by friends and family as a couple.  Thus, the Tribunal noted that the Applicant gave evidence at the hearing to the effect that:-

    a)they had only one mutual friend;

    b)he “did not spend too much time” with the sponsor’s friends;

    c)the sponsor went out with his friends “two or three times”;

    d)he had never met the sponsor’s mother;

    e)he had met the sponsor’s sister only once;  and

    f)he did not know the sponsor’s sister’s name.

    The Tribunal found, on balance, that the evidence of the Applicant and sponsor represented themselves to, and being accepted by family and friends, as well as third parties, as a couple, to be somewhat limited.

16. When considering the nature of the person’s commitment to each other, the Tribunal had concerns regarding the nature of the Applicant’s commitment to his relationship with the sponsor.  The Tribunal was concerned that the Applicant’s account of the cause of the sponsor’s death differed from the independent medical evidence.  The Tribunal was also concerned that the Applicant was unaware of a coronial inquest into the cause of the sponsor’s death and the sponsor’s criminal history, including a manslaughter conviction and a string of other convictions during the period of their alleged relationship.

17. The Tribunal noted that information was put to the Applicant by the Tribunal in accordance with s.359AA of the Act to the effect that the Applicant’s marriage was a sham; that he got married to the sponsor to obtain permanent residency; and that he was paying the sponsor. The Applicant was offered an opportunity to comment. The Tribunal complied with the requirement of the natural justice hearing rule as set out in Division 5 Part 5 of the Act.

18. It is plain the Tribunal engaged in a thorough and detailed analysis of the Applicant’s claim that his sponsor was his spouse within the meaning of the Regulations.  The Tribunal did not accept that claim on the evidence before it, and such finding was open to the Tribunal on such evidence.  The Tribunal then set out its findings of fact material to the decision and the reasons it had for reaching that decision.  It considered all of the evidence placed before it by the Applicant and determined that the Applicant’s relationship with the sponsor was not one which met the requirements of cl.801.225(b) and (c).

19. It was, however as submitted by Counsel for the First Respondent, not necessary for the Tribunal to make any conclusion about the issue, because the Applicant has failed to impugn a separate and independent pathway to the same conclusion by the Tribunal, namely, that the Applicant did not satisfy the criteria for a subclass 801 visa.

20. The application shall be dismissed with costs being payable by the Applicant to the First Respondent.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 4 December 2015