Singh v Minister for Immigration

[2015] FCCA 2958

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2958

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5F, 359A

Migration Regulations 1994 (Cth)

SZQQA v Minister for Immigration &Anor [2013] FMCA 231

Applicant: HARPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2887 of 2014

Judgment of: Judge Driver

Hearing date: 3 November 2015

Delivered at: Sydney

Delivered on: 3 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr A Day of DLA Piper Australia

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2887 of 2014

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 23 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Singh, a partner visa.

2. Background facts relating to the visa application and the decision of the Tribunal on it are conveniently set out in the Minister’s outline of submissions, filed on 23 October 2015.  

3. Mr Singh is a male citizen of India.  He applied for a partner visa on 13 March 2012,[1] sponsored by his wife Ms Rohini Devi Sharan, an Australian citizen.[2]  Mr Singh and the sponsor were married on 22 December 2011.[3] 

   [1] Court Book (CB) 1-25.

   [2] CB 26-34.

   [3] CB 49-50.

4. Pursuant to clause 820.211(2) of the Migration Regulations 1994 (Cth) (Regulations) it was a criterion for grant of the visa that Mr Singh be the “spouse” of the sponsor. “Spouse” is defined in s.5F of the Migration Act 1958 (Cth) (Migration Act) as follows:

   (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 provision in relation to the determination for different purposes whether one or more of those conditions exist.

5. For the purposes of subsection (3) above, relevant factors which must be taken into account are set out in regulation 1.15A.

6. As evidence of their relationship, Mr Singh provided the following documents to the Minister’s Department:

   a)marriage certificate;[4]

   b)statements of Mr Singh;[5]

   c)statements of the sponsor;[6]

   d)statutory declarations by four friends of Mr Singh and sponsor attesting to the relationship;[7]

   e)phone records/bills;[8]

   f)evidence from Mr Singh’s superannuation fund listing the sponsor as his beneficiary, dated 22 May 2013;[9]

   g)evidence of a holiday in June 2013;[10]

   h)residential tenancy agreement for a property in Blacktown listing Mr Singh, the sponsor and a third person as tenants, dated 25 March 2013;[11]

   i)evidence from early 2013 of a joint bank account at St George;[12] and

   j)utility bills and envelopes showing Mr Singh and his sponsor living at the same address in Mount Pritchard in 2012, and utility bills showing them living at the same address in Blacktown in 2013.[13]

   [4] CB 49-50.

   [5] CB 56, CB 92.

   [6] CB 57, CB 91.

   [7] CB 43-48, CB 100-101.

   [8] CB 131-190.

   [9] CB 127-130.

   [10] CB 102-126.

   [11] CB 99.

   [12] CB 93-98.

   [13] CB 83-90.

7. The application was refused by a delegate of the Minister on 25 July 2013.[14] The delegate was not satisfied that Mr Singh was the spouse of the sponsor, as defined in s.5F of the Migration Act. The delegate accordingly found that Mr Singh did not satisfy clause 820.211(2).

   [14] CB 192-203.

8. Mr Singh applied to the Tribunal for review of the delegate's decision on 29 July 2013.[15]  On 26 September 2013 Mr Singh advised the Tribunal that he had a new address in Fairfield.[16]

   [15] CB 204-226.

   [16] CB 230-231.

9. On 25 August 2014 Mr Singh's migration agent provided written submissions to the Tribunal,[17] and attached the following new documents as evidence of the relationship between Mr Singh and his sponsor:

   a)correspondence sent to Mr Singh in 2012 at the address in Mount Pritchard;

   b)correspondence sent to Mr Singh and his sponsor in 2013 at the address in Blacktown;

   c)correspondence sent to Mr Singh and his sponsor at the new address in Fairfield;

   d)evidence from late 2013 of the joint bank account at St George;

   e)evidence of holidays taken in August and October 2013 and March 2014; and

   f)photographs.

   [17] CB 241-378.

10. Mr Singh and the sponsor appeared at a hearing before the Tribunal on 3 September 2014.[18] The Tribunal questioned Mr Singh and his sponsor separately about various matters, and formed the view that their evidence was inconsistent. The Tribunal sent Mr Singh a letter pursuant to s.359A of the Migration Act on 4 September 2014 setting out those inconsistencies and inviting his comment or response.[19]   Mr Singh’s agent provided submissions in response, attaching a statutory declaration of the sponsor stating that she needs Mr Singh for support and that the relationship is genuine.[20] 

    [18] CB 379.

    [19] CB 380-384.

    [20] CB 385-391.

11. The Tribunal made its decision on 23 September 2014 affirming the decision under review.[21]

    [21] CB 394-408.

The decision of the Tribunal

1. The Tribunal stated at [44] that it had significant concerns about the discrepancies between Mr Singh's evidence and that of the sponsor at the hearing. The Tribunal found the responses provided to the s.359A letter to be implausible.[22]

   [22] at [45]-[50].

2. The Tribunal accepted that Mr Singh and his sponsor were validly married, as required under s.5F(2)(a).

3. The Tribunal went on to consider the factors under regulation 1.15A:

   a)the Tribunal accepted on the basis of the documents provided that Mr Singh and his sponsor live together and that they previously lived together at the Blacktown and Mount Pritchard addresses;

   b)the Tribunal accepted that Mr Singh was financially supporting the sponsor and that they had a joint bank account which was used for day to day expenses;

   c)the Tribunal found that Mr Singh had provided limited evidence of the social aspects of the relationship.  No updated witness evidence had been provided, nor any evidence from their family members.  The statutory declarations which were provided were from friends who had only known Mr Singh and his sponsor after the inception of their relationship, and when asked at the hearing about friends they see together the applicant and sponsor named only two people who were not the people who had provided statutory declarations.  The Tribunal was not satisfied that Mr Singh and his sponsor present themselves to other people as being in a spousal relationship or that they plan and undertake social activities as a couple;

   d)the Tribunal noted that Mr Singh and his sponsor had known each other very briefly and had met in person on only four occasions before they married, and that the application was lodged only two days before Mr Singh’s substantive visa ceased.  The Tribunal considered that Mr Singh’s evidence at the hearing indicated that he did not have a good understanding of the sponsor's family circumstances and did not discuss with her his future plans.  The Tribunal was not satisfied that Mr Singh and his sponsor had a mutual commitment to one another or that they both see the relationship as long-term.

4. The Tribunal concluded that it was not satisfied that Mr Singh was the spouse of the sponsor at the time of application or the time of decision and that he did not satisfy clauses 820.211 or 820.221.

The present application

1. These proceedings began with the show cause application filed on 17 October 2014.  Mr Singh continues to rely upon that application.  There are nine grounds in the application:

   1. The Migration Review Tribunal erred in its judgment in consideration that applicant’s evidence regarding partner temporary visa.

   2. The Migration Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the applicant claims were not made out and not enough evidence provided that were not obviously open on the know material.

   3. The Migration Review Tribunal erred in its judgment that the degree of hardship that may be caused by the cancellation to the applicant and his other family members.  The Tribunal has not considered this aspect and made factual and legal error.

   4. The Migration Review Tribunal erred in its judgment that applicant past and present behaviour with the Department.  The Tribunal has not considered this aspect and made factual and legal error.

   5. The Migration Review Tribunal erred in its judgment about the financial support evidence provided by the Applicant.  The Tribunal has not considered this aspect and made factual and legal error.

   6. The Migration Review Tribunal erred in its judgment that the evidence provided for the social aspect is not sufficient.  The Tribunal has not given enough consideration to the provided information and made factual and legal error.

   7. The Migration Review Tribunal erred in its judgment that the nature of household they lived is not adequate.  The Tribunal made factual and legal error.

   8. The Migration Review Tribunal raised some issue by letter dated 4^th September 2014 in response representative of the applicant replied on 23^rd September 2014 was not considered by the Tribunal.  Therefore the MRT decision dated 23/09/2014 was affected by bias constituting judicial error.

   9. The Migration Review Tribunal erred in its judgment that the applicant does not meet the relevant criteria under Australian Migration Act and Migration Regulation accordingly MRT made legal error.

   (errors in original)

2. The application is supported by an affidavit filed with it, which I received into evidence.  I also received as a submission a recent affidavit by Mr Singh, which sets out his submissions in relation to these proceedings.  That affidavit was filed on 2 November 2015.  I also received as evidence an affidavit by Mr Singh, filed on 20 October 2015, to which is annexed the transcript of the hearing conducted by the Tribunal. 

3. I declined to receive an affidavit by Mr Singh, filed on 30 January 2015, to which was annexed some photographs and other documents, apparently intended to support the genuineness of the spousal relationship between Mr Singh and his wife.  I declined to receive that affidavit on the basis that the documents annexed to it could not assist me in considering the validity of the Tribunal decision.

4. Mr Singh is obviously concerned that his marriage was not accepted as genuine by the Tribunal.  He considers that he put sufficient material before the Tribunal to support the genuineness of the spousal relationship.  He considers that the Tribunal concentrated on minor questions of detail in order to find flaws in his visa application.  Mr Singh took me to page 33 of the transcript of the Tribunal hearing, in order to support his proposition that the Tribunal was looking to find reasons to reject the visa application.  However, on my perusal of that page of the transcript, and indeed the transcript generally, I see no evidence of bias or pre-judgement. 

5. The Tribunal plainly had doubts about the genuineness of the spousal relationship, which was why Mr Singh and his wife were invited to a hearing before the Tribunal.  The Tribunal presiding member put directly to Mr Singh’s wife when she gave evidence that Mr Singh may have married her in order to get a permanent visa.  She answered that she did not have that concern.  I see nothing improper in the question put by the Tribunal.  As has been stated on several occasions, in order to perform its function of review, the Tribunal may need to test claims vigorously. 

6. Mr Singh complains that he was confused and nervous during the Tribunal hearing. However, I see nothing in the transcript to support a proposition that he was not given a fair hearing opportunity. Mr Singh is also concerned that the Tribunal decision was made very quickly after he responded to an invitation to comment, issued pursuant to s.359A of the Migration Act. Indeed, he complains in his grounds of review that the Tribunal did not consider his response to that invitation to comment.

7. Plainly, however, that response, which is discussed in some detail in the Tribunal’s reasons was considered.  While the Tribunal decision was made before the time period ended within which a response could be made, the reality is that the response was provided before that time and there was no reason for the Tribunal to further delay making a decision.  All of the matters raised by or responded to by Mr Singh were considered by the Tribunal. 

8. It was, in my view, open to the Tribunal to conclude that the spousal relationship between Mr Singh and his wife did not meet the test for a temporary spouse visa, by reason of the inconsistencies revealed between the evidence of Mr Singh and his wife and the scarcity of evidence about the social aspects of their relationship and the lack of a common understanding of their future plans.

9. In other respects, I agree with the Minister’s submissions in relation to the grounds of review advanced in the application.

10. Grounds one, five, six, seven and nine take issue with the merits of the Tribunal’s decision.

11. The second ground is a broad allegation of a denial of procedural fairness, and without proper particulars does not raise an arguable case.  The third and fourth grounds bear no relevance to the Tribunal decision under review, as they refer to the factors relevant to visa cancellations.

12. Ground eight alleges that the submission made to the Tribunal on 23 September 2014 (being the response to the s.359A letter) was not considered by the Tribunal. As I have already found, this cannot be sustained; the response was considered by the Tribunal in some detail.

13. The Minister notes an additional issue with respect to the response to the s.359A letter. The s.359A letter sent to Mr Singh allowed him until 29 September 2014 to respond. Mr Singh’s agent responded to the letter on 23 September 2014, and the Tribunal then made a decision on that day. The Minister contends that although this was before the time period for responding to the letter had expired, the Tribunal has not fallen into jurisdictional error, relying upon SZQQA v Minister for Immigration &Anor. [23]  I accept that submission.

    [23] [2013] FMCA 231 at [255], [229], [249]-[250], [256], [259]-[260].

14. I conclude that Mr Singh has not demonstrated an arguable case of jurisdictional error by the Tribunal. 

15. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules, the application is dismissed.

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Singh asked questions concerning next steps available to him, but he did not wish to be heard on costs.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 November 2015