Singh v Minister for Immigration

[2015] FCCA 1005

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1005

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – procedural fairness – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.359A, 359AA, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: ARMINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 775 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

Counsel for the Applicant: Mr R. Kellalea

Solicitors for the Applicant: MLC Lawyers

Solicitors for the Respondent: Ms N. Senanayake
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1376.

3. Application to file the further amended application is refused

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 775 of 2015

ARMINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa made on 26 February 2015.  The original application identified three grounds, all of which clearly failed to disclose any arguable jurisdictional error:

   Ground 1

   The Tribunal made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances. The Tribunal had to consider whether there were compelling and compassionate reasons for not applying Schedule 3 criteria.

   The applicant states the Tribunal erred in its decision when it decided that there were no compelling and compassionate reasons applicable to the applicant's matter. The applicant states compelling reasons applicable to his matter are:

   1. That he and his wife are happily married. He has a deep bond with the sponsor's child. The applicant states that he is providing a father figure to the child. The applicant accepts that the child's biological father still provides for the child's maintenance. However, the applicant states for all other purposes he acts as the father to the child. It is unreasonable and uncompassionate in these circumstances if the applicant were to go back to India. The child will be shocked, devastated again to lose a father figure which is essential at the child's growing up years. The devastation to his wife would be enormous as she is still reeling from the repercussion of her earlier relationship. His wife, the sponsor has finally started to resume her life again, and so does her child. The applicant is happy with the sponsor and is for the first time enjoying family life. In these circumstances, it is unthinkable for the applicant, his wife to part.

   2. The Tribunal's contention that the applicant can go back to India and that his wife and child could join him is a possibility although not a viable one. The applicant states that if they were to join him in India, he will first have to secure an income, arrange for paper work for them to stay over. The applicant believes living in India might require lot of adjustments for the sponsor and her child, the way of life and its culture quite different to what is Australian way of life. The applicant does not want his wife and child to go through all these when they can happily live here as a family.

   3. The applicant refuses the argument of the Tribunal that at the time of lodgement of the application their relationship was brief The applicant submits that every relationship evolves through years and at the time of their marriage they felt they were compatible to each other with similar goals and interest. At the time of marriage, he was already bonded with the child who was without a father figure. The applicant submits today their relationship is strong and that they depend on each other in every aspect of life. The applicant requests the Court to take into account the welfare of the child involved in this union. It is compelling in such circumstances for them to stay together.

   Ground 2

   The applicant was not afforded natural justice.

   Particulars

   The applicant believes that he not afforded a fair hearing. The applicant states he had legitimate expectation to live in Australia with his family. The applicant believes that this expectation was curtailed by the decision of the Tribunal because the Honourable Member did not bring his mind to impartially decide his case on its own merits. The applicant states the Honourable Member did not take into account relevant considerations and took into account irrelevant considerations

2. The Court indicated to Mr Killalea, solicitor for the applicant, that the Court was minded to consider whether it should exercise its summary dismissal powers under s.17A(Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001) in relation to the application.  The application identifies under first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. In considering exercising the summary disposal powers under s.17A and r.13.10, I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118. Mr Killalea indicated that the first three grounds had been abandoned and that there was an amended application that had been filed. Paragraph 4 of the Response filed by the first respondent identifies the proposition that there is no arguable case and at the commencement of the matter the respondent said that there was no reason why the matter should not be dealt with summarily.

4. The amended application identified the following ground:

   1.:. The decision of the Migration Review Tribunal was attended by jurisdictional error by reason that, contra Schedule 3, cl 820 (2)(d)(ii) of the Migration Regulations 1994 the MRT failed to consider whether either of Schedule 3. Criteria 3003 or Schedule 3. Criteria 3004 applied to the Applicant.

   Particulars

   [11]- [13] & [34] Statement of Decision and Reasons dated 26 February 2015

5. Mr Killalea then sought to indicate that he would seek to file a further amended application raising the following two additional grounds:

   2. The MRT failed to comply with s.359A.

   3. The MRT failed to comply with s.359AA (re[35]).

6. In relation to ground 1, it is clear from para.9 of the Tribunal’s reasons that it identified the whole of the relevant criteria, 3001, 3003 and 3004, that were relevant to its decision.  It is clear that the Tribunal in this case carefully considered the issue of compelling circumstances in respect of 3004.  Mr Killalea sought to advance that the Tribunal had misconstrued its jurisdiction by reason of the distinction between 3003 and 3004.  The Tribunal’s decision is not to be read with a keen eye for error.  There is no substance in the allegation that there is a jurisdictional error disclosed by ground 1.  It is clear the Tribunal correctly identified the criteria that had to be applied, and the findings made by the Tribunal were clearly open on the material before it. 

7. In relation to ground 2 of the proposed further amended application, the ground formulated patently fails to identify any specific information said to fall within an alleged noncompliance with 359A. Mr Killalea initially sought to argue in relation to ground 2 that para.16 identified information that was of a kind that gave rise to application of s.359A.

8. Section 359A requires, in circumstances where the Tribunal considers it appropriate, to give clear particulars and information that the Tribunal considers will be the reason or part of the reason for affirming the decision that is under review. It is not the case that in every matter before the Tribunal it is required to give a letter under s.359A. Moreover, it is clear that the content of what was identified in para.16 by Mr Killalea was content that would squarely fall within s.359A(4)(b) even if it were otherwise arguable.

9. Mr Killalea sought to come back to ground 2 to develop an argument that it was the rest of the paragraphs in the Tribunal’s reasons all fell with s.359A. Then Mr Killalea sought to refer to paras.5, 6, 7, 9 and suggested that these paragraphs and para.35 also identified material that somehow should have given rise to an obligation under s.359A. There is no substance in any of those propositions. The paragraphs do not identify information of a kind falling within s.359A. Moreover the conclusion in para.35 is not within s.359A. Ground 2 of the proposed further amended application fails to disclose an arguable jurisdictional error.

10. In relation to ground 3 of the proposed further amended application, it also fails to identify any jurisdictional error. When Mr Killalea was asked to identify the information said to be the subject of the contravention of s.359AA, he sought to advance that it was all relevant and that it was the family situation. Again, it is clear that there is no substance in relation to the proposed third further amended ground. The reference added to para.35 does not assist the applicant and that conclusion does not identify any information that constitutes a non-compliance with s.359AA.

11. In this case, the applicant applied for a visa on 5 February 2013, which the delegate refused, and the applicant appeared before the Tribunal on 18 February to give evidence and present arguments and was assisted with an interpreter and with his registered migration agent.  The Tribunal squarely identified the relevant issue to be determined as set out in paras.7 and 8 as follows:

    7. The issue in the present case is whether the applicant held a substantive visa at the time he made his application and, if he did not, whether there are compelling reasons for not applying the Schedule 3 criteria.

    8. Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

12. The Tribunal concluded that the requirements of 3001 clearly had not been made out as set out in paragraph 13.  Those findings were clearly open.  It was in those circumstances that the Tribunal turned to the issue of compelling circumstances in relation to criterion 3004.  The Tribunal made adverse finding as identified in paras.34 and 35 as follows:

    34. Overall, after considering all the evidence presented, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

    35. There is no evidence that Mr Singh meets any of the alternative criteria in cl.820.211(3)-(9), that is; people entering Australia to marry and who have subsequently married, and the exceptions based on the death of the sponsor, family violence and the birth of a child.

13. The Tribunal had carefully identified the evidence of the applicant.  The findings of the Tribunal were clearly open.  I am clearly satisfied the proceedings are doomed to failure.  The amended application fails to disclose any arguable jurisdictional error.  The proposed further amended application fails to identify any arguable jurisdictional error.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.  The application to file the further amended application is refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015