Singh v Minister for Immigration
[2020] FCCA 3082
•13 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3082 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether the Tribunal’s decision was illogical or irrational – whether the Applicant was denied procedural fairness – no jurisdictional error established – application dismissed with costs. |
| Legislation: Migration Act 1958, s.357A, Div.5 of Pt.5 |
| Cases cited: Singh v Minister for Home Affairs [2020] FCAFC 7 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 WZAVW v Minister for Immigration and Border Protection (2016) FCA 760 |
| Applicant: | MANPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISRATIVE APPEALS TRIBUNAL |
| File number: | MLG 18 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 6 October 2020 |
| Date of last submission: | 6 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2020 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondents: | Mr Hibbard |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The name of the First Respondent be amended to the ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Application filed on 5 January 2017 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 18 of 2017
| MANPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 23 December 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Partner (Temporary) (Class UK) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicant is an Indian national. He applied for the visa in 2014 based on his marriage to an Australian citizen, Kristyanne Maria Singh (née Karam) (‘sponsor’).
The application was rejected by a delegate of the Minister on 7 February 2014. That led to proceedings in the Migration Review Tribunal and this Court. It is unnecessary to traverse that history here. Relevantly, however, the matter was remitted to the Tribunal for re-determination and the Applicant’s migration agent subsequently submitted supporting documents and a written submission.
On 21 November 2016, the Applicant was invited to attend a hearing at the Tribunal on 21 December 2016.
The Applicant attended the hearing on 21 December 2016. That hearing was adjourned to 23 December 2016. The Applicant’s migration agent and the sponsor did not attend either of the hearings.
On 23 December 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
On 5 January 2017, the Applicant filed the Application for judicial review (‘Application’) in this Court. An affidavit in support was also filed by the Applicant.
Orders were subsequently made in relation to the proceedings in this Court. The Minister has filed written submissions and a Court Book pursuant to those orders. The Applicant has not filed an amended application or written outline. He appeared unrepresented at the hearing before me and was assisted by a Punjabi interpreter.
The decision of the Tribunal
As an applicant for the visa, the Applicant needed to satisfy, among other things, clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (‘Regulations’). Clause 820.211(2)(d)(ii) relevantly requires an applicant to satisfy criteria 3001, 3003 and 3004 of Schedule 3 to the Regulations, unless the Minister is satisfied that there are ‘compelling reasons’ for not applying these criteria.
Criterion 3001 relevantly required the Applicant to have made the visa application within 28 days after the day on which he ceased to hold a substantive visa.
The Applicant’s student visa expired in June 2012. He applied for the visa on 13 May 2013. There was not a dispute before the Tribunal that the Applicant did not hold a substantive visa at the time he applied for the visa.
In its decision, the Tribunal:
a)identified the issue before it as whether the Applicant satisfied the Schedule 3 criteria unless there exist ‘compelling reasons’ for not applying the criteria: at [8] of its reasons;
b)found that the Applicant did not satisfy the criteria set out in Item 3001: at [10]-[12] of its reasons;
c)identified and set out the relevant law in respect of the expression ‘compelling reasons’: at [15] of its reasons;
d)in considering whether there existed ‘compelling reasons’:
i)assessed the evidence before it at [17]-[19] of its reasons before finding that the Applicant and the sponsor were not in a spousal relationship: at [20] of its reasons;
ii)considered the support (emotional and financial) the Applicant provided to the sponsor: at [21]-[25] of its reasons;
iii)considered the support the Applicant had given to the sponsor in respect of her health and concluded that his claims were, among other things, ‘untruthful’: at [26]-[29] of its reasons;
iv)considered that there was nothing compelling about the fact that the Applicant and the sponsor might love each other, and that such a matter was a common feature of relationships in respect of which this visa was sought: at [30] of its reasons;
v)concluded that the Applicant had not satisfied the requirements of clause 820.211: at [34]
e)found separately that the Applicant and the sponsor were no longer in a spousal relationship: at [35]-[40] of its reasons;
f)found that the Applicant was unable to satisfy the criteria in respect of the visa.
The Application for Review
The Application does not contain any specific grounds. Under the heading ‘Grounds of application’ it states ‘I have attach Letter as grounds’.
The letter attached to the Application states as follows:
‘Dear Sir/Madam
With reference to the above mentioned application I hereby wish to provide the following information:
I had applied for a valid application for a UK Partner (Temporary) and BS Partner (Residence) visa on the basis of not meeting the schedule 3 criterion 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 . I then further applied for review of the decision with MRT and the decision was affirmed by MRT. Then I further applied for judicial review and MRT's decision was overturned as the applicant met 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 .
The application was again refused on the grounds of that the application does not meet Subclause (2) of regulation 820.211. Specifically, subclause 820.211(2)(d)(ii) which stated you must satisfy criteria 3001, 3003 and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria.
Since then the Federal Circuit Court has ruled that there is a jurisdictional error as identified in Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32, in construing clause 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 as confining the decision-maker's satisfaction of whether there are compelling reasons for not applying Schedule 3 criteria 3001,3003 and 3004 to circumstances which only exist as at the time of application.
Compelling reasons
MZYPZv MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. 13. The Explanatory Statement to Statutory Rules 1996, No. 75 which accompanied the introduction of these provisions, stated (in relation to cl.820.211) that the inclusion of a 'waiver' provision was in recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply for a spousal (partner) visa, but would otherwise be forced to leave Australia and apply offshore. The waiver was introduced to provide flexibility for the Minister where compelling circumstances arise, but only where there are reasons of a 'strongly compassionate' nature. The Statement referred to the following circumstances as examples of where a waiver may be justified by the hardship that would result if the Schedule 3 criteria were not waived:
□ there are Australian-citizen children from the relationship; or
□ me and my spouse/ nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer.
Hence kindly note that as per the current ruling the same applies to my case.
Me and my spouse are in a genuine and continuing relationship and have incurred huge debts and the sponsor, my spouse has also previously provided various other evidence of compelling reason's (physical health and mental health issues).
Me and my sponsor have been in a long standing relationship, and been married for 4 years as of 08.09.2012. They have known each other since 2008.
We humbly request to consider these as exceptional / compelling and compassionate reasons and waive the schedule 3 criteria and remit the application to the departing and oblige’ (emphasis in original)
During the hearing, the Applicant expanded briefly on the grounds set out above. He submitted, among other things, that he did not make a false statement in the course of his application for the visa, and sought to explain some of the background to the relationship with his ex-wife.
I deal firstly with the Applicant’s oral submission. As I understood the Applicant’s submission, he sought to take issue with the findings or statements made by the Tribunal in respect of his credibility.
The Tribunal’s assessment of the Applicant’s evidence, and its findings in respect of the Applicants lack of credibility, are set out at paragraphs [16]-[19] of its reasons. It is apparent when those paragraphs are examined that the Tribunal had concerns, among others, about the Applicant, on the one hand saying his relationship with his ex-wife ended in 2008, and other statements concerning contact he had with his ex-wife in 2010. This evidence, among other evidence, formed the basis for the Tribunal’s finding that the Applicant was not a person of credibility.
There is nothing illogical or irrational about the approach that the Tribunal took to this issue. It was, in my view, open to the Tribunal to conclude in light of the information before it and the inconsistencies in the Applicant’s evidence, that the Applicant was not a person of credibility.
Turning then to other matters, to some extent, the grounds of review in the submissions made by the Applicant invite the Court to review the merits of the matter. It is impermissible for the Court to embark upon a review of the merits.
The Applicant has not in the grounds of review, or in his written submissions, identified with any specificity or particularity, any error said to have been committed by the Tribunal. The absence of the particularisation of any error is a sufficient basis for the Court to dismiss the Application: WZAVW v Minister for Immigration and Border Protection (2016) FCA 760 at [35].
Notwithstanding the absence of any identified error or particulars of any error in the grounds of review, or the Applicant’s oral submissions, I have considered in light of the Applicant’s unrepresented status, whether the Tribunal has committed an error.
A review of the reasons of the Tribunal does not, in my view, disclose any error. The Tribunal correctly identified the issue before it being whether the requirements contained in clause 820.211 of Schedule 2 to the Regulations were satisfied. Having done so, the Tribunal properly directed itself to the issue of whether compelling circumstances existed. In that respect, it’s summary of the law at paragraph [15] of its reasons is correct, particularly when one has regard to the most recent statement of the Full Court in relation to this issue: see Singh v Minister for Home Affairs [2020] FCAFC 7 at [27].
Having identified the issue before it and the relevant legal test, the Tribunal set about applying the relevant principles to the facts before it. In the grounds of review, the Applicant seems to challenge the approach taken by the Tribunal to its consideration of whether ‘compelling reasons’ existed. I have summarised the approach taken by the Tribunal earlier in these reasons. It can be seen from that summary that the Tribunal took into account and addressed each of the Applicant’s circumstances as they existed at the time of the decision. There is nothing in the approach of the Tribunal that indicates it engaged in any reasoning that was illogical, or irrational. The conclusion reached by the Tribunal was one that appears to me to be open to it on the evidence before it.
I observe that at paragraphs [35]-[40] the Tribunal assessed the relationship between the sponsor and the Applicant and independently concluded that they were not in a spousal relationship, having regard to the content contained in regulation 1.15A of the Regulations. It does not appear that there was any necessity for the Tribunal to embark upon this exercise, given its earlier finding that the Applicant did not satisfy clause 820.211 of the Regulations. The approach that the Tribunal took to this issue does not appear to me to be infected with any error. Even if an error could be found in this aspect of the Tribunal’s reasoning, however, it is not an error that affects the Tribunal’s earlier conclusion that the Applicant did not satisfy clause 820.211 of the Regulations.
Finally, it is appropriate to consider whether the Applicant has been denied procedural fairness. In this respect, section 357A of the Migration Act 1958 (‘Act’) states that Division 5 of Part 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule. In respect of the present matter, the Applicant was invited to attend the hearing (Court Book 596). That invitation squarely notified the Applicant of the issues which he would confront, including whether there were any ‘compelling reasons’ for not applying the Schedule 3 criteria. Further, the Applicant attended the hearings: see the hearing records at Court Book 605 (for the hearing on 21 December 2016) and Court Book 619 (for the hearing on 23 December 2016). In my view, when the above matters are considered, the Applicant has not been denied procedural fairness.
In view of the above matters, I am satisfied that the Tribunal has not committed any jurisdictional error. Accordingly, the Application must be dismissed. It is usual that costs follow the event. I will order costs in favour of the Minister.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 13 November 2020
0
4
3