SINGH v Minister for Immigration

[2015] FCCA 2870

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2870

Catchwords:
MIGRATION – Skilled visa application – application for judicial review – application dismissed – no matter of principle.

Legislation:

Administrative Appeals Tribunal Act 1975

Migration Act 1958 (Cth), s.5F

Applicant: DINESH SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1176 of 2014

Judgment of: Judge Riethmuller

Hearing date: 24 September 2015

Date of Last Submission: 24 September 2015

Delivered at: Melbourne

Delivered on: 24 September 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

3. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

4. Upon the undertaking of the Applicant to produce Exhibit 1 to any appeal court in the course of any further related proceedings, Exhibit 1 be returned to the Applicant forthwith.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1176 of 2014

DINESH SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. The Applicant in this matter seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) of 19 May 2014.  The Applicant was a co-Applicant for a Skilled (Residence) (Class VB) visa on the basis of being the spouse of the primary visa Applicant, who was then his wife.  He is a citizen of India, and the original visa application with his wife as the primary visa Applicant was made on 3 January 2012. 

2. On 28 May 2013, the Applicant’s wife advised the Department of Immigration and Border Protection (‘the Department’) that she had separated from the Applicant and that an intervention order had been obtained in the State Magistrates’ Court.  A copy of that intervention order was provided to the Department.  The Department sent an email to the Applicant’s agent on 29 May 2013 inviting the Applicant to comment on the adverse information, namely the statement by the Applicant’s wife that they had separated and that she had obtained an intervention order against him. 

3. The Applicant responded on 23 June 2013 advising that he was in the process of attempting to resolve what he described as the misunderstandings that he had with his wife. The Applicant’s email attached a number of statutory declarations from his wife and various friends.  The Applicant said that he had a genuine relationship that was ongoing with his wife at that time. 

4. On 2 July 2013, the delegate received an email from an agent for the wife attaching a copy of a police statement that she had made setting out that she had decided to end the marriage and alleging that the Applicant had assaulted her. 

5. On 10 July 2013, the wife also advised that she had no intention of resuming a relationship with him and attached a copy of a final intervention order. The delegate refused to grant the Applicant a visa on the basis that he failed to meet the relevant criteria, namely, that he was a spouse of the primary visa Applicant, given that spouse is defined in section 5F of the Migration Act 1958 (Cth) (‘the Act’) 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 provision in relation to the determination for different purposes whether one or more of those conditions exist.

6. The Applicant then sought review in the Migration Review Tribunal.  The matter came before the Tribunal.  The Applicant had a hearing.  The Applicant produced a bundle of photographs, a copy of which has been tendered today and marked ‘Exhibit 1’. 

7. It is clear from the Tribunal decision that the Tribunal saw these photographs and had regard to them as set out in the last two lines of paragraph 13 at page 4 of the decision.  The Tribunal, importantly, identified the legal test for whether or not the Applicant satisfied the criteria for the grant of the visa at the time of the decision, saying:

   14. I explained to the Applicant that the criteria under consideration needed to be considered at the time of decision meaning now. I asked him if he was currently a member of the family unit of his wife, he said he could not do anything, he said he had spent his studies and his life here. He said if he went back he would not find anything, his future is ruined.

8. The evidence before the Tribunal was that the Applicant’s relationship ended at least in around April or May 2014.  The Tribunal said:

   18. I have considered the statements from the Applicant on the Departmental file. I have considered his evidence, the photographs, that (sic) statements from the Applicant and his wife, dated May 2011 and other information. It appears clear that there is some disagreement in the evidence about when the relationship ceased. I consider that the relationship may have been sporadic during and after the intervention orders taken out by Ms Gill, and that the relationship continued in some form until April or May 2013. What is clear from the Applicant’s evidence at hearing is that the relationship ended in around April or May 2013, and has not resumed.

9. Before me today, the Applicant confirms that he is not in a relationship of a spousal nature as defined under the Act with his wife any longer.

10. The case appears to me to be one where the Applicant is simply unable to establish that he meets one of the criteria for the grant of the visa.  The determination by the Tribunal appears to have been undertaken after a review of the facts and material put before it and based upon a finding of fact which it does not seem is presently challenged.  Turning then to the formal grounds for review, the grounds are as follows:

Ground 1

I have applied to the department of information and border protection for a Skilled (Residence)(Class VB) visa on 03 January2012, delegate decided to refuse to grant the visa on 24 July 2013 on the basis of cl.885.321 of schedule to the migration regulations 1994 (the Regulations) because they said I was no longer member of the family uni of a person who, having satisfied the primary criteria, is the holder f a subclass 885 visa, because the department had been informed that the Applicant and my wife were separated from 8 august 2012.

Ground 2

I applied to the Tribunal on 12 August 2013 for review of the delegates decision, and honourable Tribunal refused to grant visa, and informed that the decision of the delegate of the minister for Immigration and Border Protection remains in force and my application to have that decision changes has been unsuccessful.

Ground 3

I request to honourable minister to please reconsider my application and give me some time so that I can produce the documents and can submit the same at earliest. 

1. The grounds themselves do not identify or articulate a ground for judicial review.  The first ground simply sets out the events surrounding the unsuccessful application to the delegate as summarised in the Tribunal decision.  The second ground does not appear to take issue with the basis for the decision, simply the outcome.  The third ground simply asks for a reconsideration on the assumption that there is some general discretion on the part of the Court to have the Minister grant a visa. 

2. The crux of this case is that the Applicant has been in Australia for quite a number of years, and as a result of his matrimonial circumstances is no longer eligible for a spouse visa.  The Applicant feels aggrieved that he is now in a circumstance where he is not able to obtain a visa within Australia. 

3. Unfortunately for the Applicant, that is the circumstance that he confronts. The Applicant is not eligible for a spouse visa in circumstances where he is no longer the spouse, as defined in the Act, of the primary visa holder, his wife, and must, therefore, find an independent basis upon which to obtain a visa. Whether he can do that on shore or would need to apply off shore is a matter about which he will have to take advice. However, on the material as put forward, it appears to me that there is no option but to refuse the current application.

[further argument ensued]

1. This is an application for costs in the sum of $5,800.00 by the First Respondent.  The sum sought is less than the scale fee and I find that it is reasonable.  The Applicant opposes costs on the basis of his financial circumstances and lack of employment.  This is not a reason not to order costs on the usual principles that costs follow the event. 

2. In the circumstances, I therefore dismiss the application and order that the Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

3. I note that I have marked the photographs ‘Exhibit 1’. I order that Exhibit 1 be returned to the Applicant on the Applicant’s undertaking to produce on any appeal, if it becomes necessary. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  28 October 2015