SINGH v Minister for Immigration

[2015] FCCA 1531

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1531

Catchwords:
MIGRATION – Application for judicial review of Delegate not granting a Partner (residence) (class BS) visa – applicant admits that he and sponsor separated at time of hearing before Tribunal – statutory considerations do not apply – no residual discretion in Tribunal to consider other compassionate grounds – procedural fairness accorded applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: PARAMJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1746 of 2014

Judgment of: Judge McGuire

Hearing date: 4 June 2015

Date of Last Submission: 4 June 2015

Delivered at: Melbourne

Delivered on: 26 June 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Ms Lucus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed 26 August 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1746 of 2014

PARAMJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application seeking judicial review of a determination of the Migration Review Tribunal (“the Tribunal”) affirming a decision of the Minister’s Delegate refusing the grant of a Partner (Residence) (Class BS) visa (“the visa”) to the Applicant.

2. The applicant appeared unrepresented. He had not complied with the Registrar’s directions on 19 November 2014 to provide written submissions. The applicant did, however, make brief oral submissions in support of his matters of complaint.

3. Under the heading “Grounds of application” the applicant asserts the following:

   1. I, the applicant, applied to MRT for review of the delegate’s decision.

   2. The hearing was fixed for 22 July 2014 when I, the applicant appeared before the Tribunal to give evidence and present arguments.

   3. The Tribunal seceded to affirm the decision of the Delegate of the Minister for Immigration and Border Protection, not to grant the applicant a Partner (Residence)Class BS visa.

   4. The tribunal made a decision without considering all facts and information and disregarding the evidence it had on file.

   5. The Tribunal failed to accord me the applicant procedural fairness and natural justice.

   Particulars:

   a. The Applicant refers to an repeats the particulars at paragraph 1 above.

   b. The Tribunal erred in not having considered the fact that the applicant was a tough time in his life when his relationship broken down due to circumstances beyond his control.

   c. The Tribunal erred in not considering that the applicant’s circumstances were attributable in the current position and was under depression and stress.

   d. The tribunal erred in not taking into account the strongly compassionate reasons to remit the decision of the Delegate for reconsideration.

   3. The Tribunal failed to provided natural justice to the applicant.

   Particular.

   The Applicant refers to and repeats the particulars at paragraph 1 above.

   a. The Tribunal failed to consider that the applicant and sponsor have an ongoing strong relationship otherwise till the date of breaking down the relationship.

   b. The Tribunal failed to take into account personals circumstances that led to the failure of his marriage with his partner and thus relationship broken down.

   c. The Tribunal failed to consider the applicant’s compelling circumstances and proceeded to decide the case against the applicant, denying natural justice to the applicant.

Background.

1. The applicant is from India. He made an application for a visa on 22 July 2010. On 5 March 2013 the Minister’s Delegate refused to grant the visa, not being satisfied the applicant was the spouse of the sponsor at the time.

2. The applicant applied to the Tribunal for a merits review of the Delegate’s decision on 20 March 2013. The applicant appeared before the Tribunal on 4 August 2014. He gave evidence and provided arguments. On that day the Tribunal affirmed the Delegate’s decision not to grant the visa.

Tribunal’s Finding.

1. The Tribunal was satisfied that the applicant and the sponsor were married on 15 August 2010 in Melbourne therefore satisfying s.5F(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant conceded in his evidence that the applicant and the sponsor had separated as at the date of the hearing before the Tribunal

3. S.5F of the Act provides:

   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.

4. The Tribunal was satisfied on the applicant’s own evidence that the relationship with the sponsor was not continuing and the applicant did not therefore meet the requirements of cl.801.221(2)(c) or (2A)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”).

5. The Tribunal then properly considered and made findings as follows:

   i) There are no children of the relationship;

   ii)That there is no evidence of violence within the relationship;

   iii) That there is no evidence that the sponsor was deceased; and

   iv) That the applicant did not meet the requirements of cl. 801.221(2).

Application to this Court.

1. The applicant’s application and his oral submissions to this Court suggest that he confuses marital status at the time of the hearing of the Minister’s Delegate with that before the Tribunal. The relevant time for the Tribunal’s consideration is as of the hearing of that application. The applicant conceded before the Tribunal that he and the sponsor were separated.

2. Secondly, the applicant contends, both in his application and in oral submission, that the Tribunal did not take into account his personal circumstances.

3. I accept the submissions of Counsel for the first respondent that in circumstances where the applicant does not meet the relevant statutory visa criteria, the only finding open to the Tribunal was to affirm the Delegate’s decision not to grant the visa. That is, there is no residual discretion in the Tribunal to take into account compassionate reasons.

4. The applicant argues generally that he was denied procedural fairness before the Tribunal. The applicant appeared before the Tribunal and was given the opportunity to present arguments and evidence. The applicant does not otherwise particularise any specific denial of procedural fairness. A reading of the Tribunal’s reasons does not disclose any obvious denial of procedural fairness. As such, I find no merit in this ground of complaint.

Disposition.

1. There being no merit in the grounds of complaint in the application, the application for judicial review will be dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 June 2015