SINGH v Minister for Immigration

[2015] FCCA 3170

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3170

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – Show Cause Hearing – whether the Tribunal failed to consider the applicant’s claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 cl.820.211

Applicant: MANDIP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2170 of 2015

Judgment of: Judge Street

Hearing date: 27 November 2015

Date of Last Submission: 27 November 2015

Delivered at: Sydney

Delivered on: 27 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2170 of 2015

MANDIP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal dated 10 July 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant is a national of India who arrived in Australia on 10 April 2009 on a subclass 573 student visa which ceased on 13 May 2011. That decision was affirmed by the Tribunal on 29 April 2013.

2. The applicant applied for the partner visa on 12 April 2013 and was refused by the delegate on 26 June 2014, on the basis that the visa applicant did not satisfy cl.820.211 because he did not meet criterion 3001 of Schedule 3 and there were no compelling reasons for not applying the criterion. On 11 June 2015, the applicant was sent an invitation to appear before the Tribunal on 9 July 2015, and the applicant appeared on that date to give evidence and present arguments and was represented by his registered migration agent.

3. The Tribunal identified that the issue in the present case was whether the applicant meets criterion 3001 of Schedule 3 or whether the Tribunal was satisfied that there are compelling reasons for not applying the criterion.  Relevantly, the Tribunal held:

   12. The Tribunal has found that the applicant ceased to hold a substantive visa when his Student visa ceased on 13 May 2011. The Tribunal finds that 13 May 2011 is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As his application for the Partner visa was made in April 2013, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

   13. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

4. It was in those circumstances the Tribunal turned to the issue of compelling reasons. 

5. The Tribunal identified that the issue of compelling reasons had to be determined at the time of the filing of the application and took into account the short duration of the marriage at that time and the short duration of the relationship between the applicant and the children and identified that the subsequent issues in relation to the applicant’s marriage could not be taken into account in respect of the relevant criteria. 

6. It was in those circumstances the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria and found the applicant did not meet the criteria under cl.820.211(2)(d)(i). The Tribunal found that the applicant did not meet the criteria under cl.820.211(3) to (9) and affirmed the decision of the delegate.

7. The grounds in the application are as follows:

   1. The Administrative Appeal Tribunal made a jurisdictional error in denying the Applicant's application for a Partner (Temporary) (Class UK) visa in failing to consider all the facts and the law related to the Applicant's application particularly:

   Particulars:

   (a) The Administrative Appeals Tribunal did not consider that the Applicant is failed to provide evidence that the parties were not in genuine spouse relationship.

   (b) The applicant first travelled on Student visa to Australia. He sought another student visa but it was refused. The applicant applied for the Partner visa on 12th April2013 on the basis of his relationship with his sponsor.

   (c) The delegate refused his visa on basis that the visa applicant did not satisfy cl.820.211 as he did not meet item 3001 of Schedule 3 and there were no compelling reasons for not applying the criterion.

   • The reasons given by The Administrative Appeals Tribunal reveals that the applicant referred to his wife's health issues, stating that she has an operation coming up in August 2015. The applicant said that he is looking after his wife's children and will need to support his wife and the children during the operation and post-operative period. The applicant presented to the Tribunal medical certificates relating to the sponsor.

   • The applicant informed the Tribunal that he has now been married for three years and it has been over two years since the application was made. the applicant referred to the Immigration policy that a two year relationship would be sufficient to meet the waiver requirement. The applicant conceded, However, that the relationship did not exist for two years at the time when the application was made.

   • The applicant referred to his partner's children and said that he treats the children as his own and looks after them. There is little independent evidence before the Tribunal of any relationship between the applicant and the children and little evidence of any support the applicant had provided to the children at the time the application was made in2013.

8. On 17 September 2015, a registrar of the Court fixed the matter of a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 and made orders for the filing of amended application, affidavit evidence and submissions.  No such documents were filed.  The assertion of jurisdictional error made in ground 1 of the application does not of itself identify any arguable issue of jurisdictional error. The Tribunal correctly considered the applicant’s facts and circumstances at the time of application 

9. The Tribunal did refer to the issue of whether the parties were in a genuine spousal relationship, but held that that was not determinative of whether there were compelling reasons not to apply the Schedule 3 criteria.  Nothing in the particulars identifies any jurisdictional error.  The applicant’s reference in the application to his wife’s health issues and his role in relation to the children and his role relating to helping his wife in the post-operative period are not matters that identify any jurisdictional error in the assessment of whether there were compelling reasons at the time of the application. 

10. Nothing was said by the applicant from the bar table to identify any arguable jurisdictional issue. I am satisfied that the application fails to disclose an arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 November 2015