SINGH v Minister for Immigration - [2015] FCCA 3095

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3095

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal was required to put information the subject of s.376 certificate to the applicant under s.359AA or s.359A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 375A, 376, 476

Migration Regulations 1994, cl.820.211, criteria 3001, 3003 and 3004

Burton v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1455
Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92

Applicant:

NIRMAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1600 of 2015

Judgment of:

Judge Street

Hearing date:

19 November 2015

Date of Last Submission:

19 November 2015

Delivered at:

Sydney

Delivered on:

19 November 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1600 of 2015

NIRMAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 made on 15 May 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant arrived in Australia on 7 March 2009 as a dependent applicant on his previous wife, being a subclass TU 573 student visa, which was cancelled on 10 September 2010 on the grounds “your relationship with your previous sponsor had ended and that you were no longer a dependent on that visa”.
It appears the applicant was granted a bridging visa on 8 December 2010 and lodged an XA 866 visa application on 31 January 2011, in respect of which the applicant was allowed to stay under WC050. The applicant appears to have had an adverse decision in that regard which was referred to a Tribunal on 28 November 2011 and that decision was then the subject of a judicial challenge by the applicant as well as an attempted ministerial intervention, all of which were unsuccessful.
The applicant got married on 14 July 2012 and lodged his application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 27 July 2012. The Partner (Residence) (Class BS) (subclass 801) was dependent upon the applicant being the holder of a Partner (Temporary) (Class UK) visa and is a derivative application. The delegate on 1 April 2014 identified that the applicant must satisfy the requirements of cl.820.211, and in relation to the applicant the delegate identified the applicant needed to meet subclause (2) of cl.820.211. In that regard the delegate noted the applicant must satisfy under clause 820.211(2)(d)(ii) criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
In relation to the criteria 3001 under Schedule 3, the application must have been validly made within 28 days of the relevant day. The relevant day was the last substantive visa which ceased on 10 September 2010. It was in those circumstances that the delegate concluded that the applicant could not meet the criteria under 3001 and accordingly could not satisfy the requirements of subclause 820.211(2)(d)(ii).
Under subclause 820.211(2)(d)(i), as the applicant was unable to meet the relevant Sch.3 criteria, the delegate turned to consider whether there were compelling reasons for not applying the Sch.3 criteria. The applicant was invited by the delegate through the applicant’s appointed migration agent to provide submissions on compelling reasons, and submissions were provided.
It is in those circumstances that the delegate found that there were no compelling reasons to waive the requirement of Sch.3 and found that the applicant did not satisfy subclause 820.211(2), and accordingly concluded that the applicant did not meet the requirements for the Partner (Temporary) (UK) subclass 820 visa. The application with that visa was refused, and because of the refusal of that visa the applicant could not obtain the subclass 801 visa.
The applicant sought review before the Tribunal, and appeared before the Tribunal on 19 March 2015 to give evidence and present arguments, and was assisted by an interpreter as well as being represented by his registered migration agent. The Tribunal identifies that oral evidence was also adduced from the sponsor, her daughter, the applicant’s employer, and his employer’s wife.
The Tribunal identified that it was not in dispute that the applicant did not have a substantive visa at the time of the application, and that accordingly the real issue is whether there are compelling reasons for not applying the Schedule 3 criteria. The Tribunal noted that the application was not made within the 28 days of the relevant day, and accordingly the applicant did not satisfy criterion 3001. It was in those circumstances that the Tribunal identified it was required to consider whether there are compelling reasons for not applying the criteria.
In the Tribunal’s reasons, the applicant’s submissions concerning compelling circumstances were summarised, as well as the representative submissions and the sponsor’s submissions. The Tribunal acknowledged that the applicant and the sponsor would suffer some distress at being separated, but found that such separation was not emotional hardship. The Tribunal took into account the submissions of the applicant and others relating to the suffering of stress and anxiety and temporary loss of conjugal rights, which the Tribunal noted was common to all persons in a genuine spousal relationship while temporarily apart.
It is important, for reasons that will be identified shortly, to note that the Tribunal in this case accepted that there was a genuine spousal relationship in its deliberation and reasons as to whether there were compelling circumstances. The Tribunal also took into account the stress and anxiety to which the applicant and the sponsor would be exposed, and also identified the ability of the sponsor to accompany the applicant to his homeland if she so desired.
The Tribunal took into account the sponsor’s mental health issues that were alleged to be of significance as well as the assistance being provided by the applicant and the applicant’s relationship with the sponsor’s daughter. The Tribunal took into account the duration of the relationship which, it is clear, the Tribunal had accepted was a genuine relationship. However, the Tribunal was not satisfied that there were compelling reasons for not applying the Sch.3 criteria and, accordingly, the applicant did not meet cl.820.211(2)(d)(ii).
The Tribunal considered the alternative criteria in cl.820.211(3) to (9) and found no evidence that the applicant met alternative criteria and, accordingly, affirmed the delegate’s decision not to grant the applicant a Partner (Temporary) (Class UK) visa. Counsel for the first respondent drew attention to the fact that there had been issued a certificate under s.376 of the Migration Act 1958, dated 11 July 2014, that was provided to the Tribunal advising that it should not disclose the identity of the source of information provided to the Department relevantly to the effect that the sponsor was paid to sponsor the applicant for the partner visa application.
Division 8 of Part 5 provides restrictions on certain information and a regime for the protection of that information. Those provisions are referred in s.357A which provides as follows:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
It is clear that the identity of an informant is the type of information that would ordinarily be the subject of public interest immunity, and the statutory regime provided for the Tribunal to act in a way that is fair and just clearly accommodates preserving appropriate public interest immunity in accordance with the provisions, relevantly, of ss.357A and 376. There was no mention of the information, the subject of the s.376 certificate, in the reasons of the delegate nor is there any reference in the decision of the Tribunal to the information, the subject of the s.376 certificate. Section 376 does provide a discretion to disclose under subs.(3) in circumstances where the Tribunal thinks it is appropriate to do so, having regard to the advice that has been given in the same certificate to certification.
The disclosure of an informant would ordinarily not be appropriate and would require special circumstances that outweighed the important public interest in protecting informants. There is nothing to suggest that this was a case where there was any ground upon which that important public interest could be displaced in relation to the deliberation of the review required in respect of the applicant’s application before the Tribunal. Counsel for the first respondent properly drew the Court’s attention to the existence of authority, Burton v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1455, which supports that where the information is of a kind falling within s.359A, the Tribunal must, so far as it is able, still act in a way that is fair and just. I note if it was not possible to do so, I would follow the reasoning of Dowsett J in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [42], which although on different grounds was referred to and applied in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92.
This is not a case where the information relating to the s.376 certificate is of a kind that falls within s.359A. Further, there is no basis to hold that the certificate was invalid. I accept the first respondent’s submission that there was no issue before the Tribunal in the present case as to whether there was a genuine relationship. In those circumstances, there is clearly no basis upon which the information, the subject of the certificate under s.376, could have fallen within the requirements of s.359A(1). It is clear that the requirements s.359A(1) are, however, qualified through s.357A in respect of the work done by ss.375A and 376.
This is a case where the inference can be readily drawn that the Tribunal did not consider the information within s.376 as information of a kind falling within s.359A. Objective considered, for the reasons I identified, it was not information that enlivened the Tribunal’s obligation under s.359A. I accept that in the above circumstances, the Tribunal was not required to deliberate upon the consideration and discretion within s.376(3).
Accordingly the Tribunal was not required to put the information the subject of s.376 certificate to the applicant under s.359AA or s.359A. I also accept the first respondent’s submission that the other material referred to in the Court book on pp.127 through to 128 cannot said to be information that enlivened an obligation under s.359A(1) in the circumstances of this case. The Tribunal was not required to put the information identified on pp.127 and 128 to the applicant under s.359AA or s.359A.
The grounds of the application are as follows:
1. I am legally married with Mrs Adele Frances Goodwin and in relationship for last 3 years
2. DIBP has refused my Partner application on unfounded grounds and did not considered my circumstances seriously
3. Migration Review Tribunal affirm the DIBP decision and refused my Partner application on unfounded grounds and did not considered my circumstances seriously. I see there is error in application of law
4. MRT did not allowed to submit more testimony and made jurisdictional omission
5. MRT did not properly consider the witness presented to MRT
6. MRT errored by not properly considering the procedural error made by the Department of Immigration and Border Proction
7. MRT did not attended the case and material produced before court
In relation to ground 1, it is only alleged jurisdictional error by the Tribunal that can enliven any entitlement to relief.
Criticism of what occurred before the delegate does not identify any jurisdictional error. To the extent that it is suggested that the Tribunal failed to consider the applicant’s circumstances, it is clear from the Tribunal’s reasons that there was a detailed identification of the evidence and submissions advanced before the Tribunal, and it was a matter for the Tribunal to determine whether there were compelling reasons. The adverse decision is not a basis on which it can be said the Tribunal did not consider the applicant’s circumstances seriously, nor is there any substance in the suggestion that there were unfounded grounds in the findings of the Tribunal. The adverse findings of the Tribunal cannot be said to lack an evident and intelligible justification.
There is nothing in the Tribunal’s reasons to identify any request for an opportunity to put on further material. This is a case where the applicant had the benefit of being represented by a migration agent. I do not accept that there is any jurisdictional error identified by the contention that the applicant was not allowed to submit more testimony. There is no evidence to support that proposition.
Insofar as it is alleged the Tribunal did not properly consider the witnesses presented, it is clear that the Tribunal identified the witnesses who gave evidence before the Tribunal, and it is not necessary for the Tribunal to refer to every piece of evidence and every contention made before it. I do not accept that there is any jurisdictional error made out by reason of the allegation that the Tribunal failed to take into account the witnesses presented to the Tribunal. On the face of the reasons of the Tribunal, it is clear the Tribunal did take into account the evidence of the witnesses before the Tribunal.
Error by the delegate is not a basis upon which the Tribunal engages in any procedural error, and there is no substance in the contention that the Tribunal’s decision was one in which the Tribunal made any procedural error. It is clear from the reasons I have given the Tribunal took into account the material that was adduced before the Tribunal. The application fails to identify any jurisdictional error.
The applicant identified from the bar table that he wished to adduce further photographs that were not before the Tribunal. As they were not in evidence before the Tribunal, those photographs are not relevant to the establishing of any jurisdictional error, and their tender was rejected.
The applicant also sought to tender some receipts and bank statement that were not before the Tribunal. Again this material was not relevant and could not establish any jurisdictional error by the Tribunal. The applicant identified that he wanted his case looked at a second time. This Court has no power to grant relief, unless a jurisdictional error is made out.
Nothing said by the applicant identified any jurisdictional error. I note that a Registrar of the Court made orders on 23 July 2015 providing an opportunity for the applicant to file an amended application, put on affidavit evidence and submissions and that no such documents were filed. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 25 November 2015