SINGH v Minister for Immigration

[2015] FCCA 1195

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1195

Catchwords:
MIGRATION – Application for Partner (Temporary) (Class UK) visa – where tribunal asked to waive compliance with criteria 3001, 3003 and 3004 in Schedule 3 to the Migrations Regulations 1994 – where tribunal determined that there were no compelling reasons to waive compliance – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1968 (Cth) s.65
Migration Regulations1994 (Cth), Schedule 2 cl.820, Schedule 3 cls.3001, 3003, 3004

Applicant: HARJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 468 of 2014

Judgment of: Judge Jarrett

Hearing date: 10 April 2015

Date of Last Submission: 10 April 2015

Delivered at: Brisbane

Delivered on: 10 April 2015

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the First Respondent: Ms Kelly

Solicitors for the Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 22 May 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 468 of 2014

HARJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. By his application filed on 22 May, 2014 the applicant seeks the issue of constitutional writs so as to challenge a decision of a migration review tribunal given on 24 April, 2014. That decision affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Partner (Temporary) (Class UK) visa pursuant to s.65 of the Migration Act1958 (Cth). The matter came before the Court on its first court date on 19 June, 2014. At that time the applicant was represented by a lawyer.

2. Directions were made by consent which provided for the listing of the matter today, for the first respondent to file a court book and for the applicant to file and serve written submissions by a date which was no less than 14 days prior to today.  The first respondent was required to file written submissions by a date which was no less than seven days prior to today.  The court book has been filed.  I have had regard to some of the material in it.  The applicant did not file any written submissions.  The first respondent has.

3. The issue before the tribunal, when it considered the review application before it, was whether, first of all, the applicant and his sponsor were spouses for the purposes of the Act and the Migration Regulations 1994, and secondly, whether the applicant was able to demonstrate compliance with certain criteria that appeared in Schedule 3 to the Regulations.

4. When the matter was before the delegate, the first issue proved dispositive.  That is to say, the delegate was not satisfied that the applicant and his sponsor, even though they were married, were spouses for the purposes of the Act and Regulations, and so the grant of the visa was refused.

5. The tribunal embarked upon a consideration of whether the sponsor and the applicant were spouses for the purposes of the Act, but ultimately did not form a concluded view about that. Rather, the tribunal determined that because the applicant was unable to demonstrate compliance with criterion 3001 in Schedule 3 of the Regulations and because the tribunal was not satisfied that compelling reasons for not applying that criterion existed, the application was bound to fail. For that reason, the tribunal took the view that it was unnecessary to decide whether the sponsor and the applicant were spouses for the purposes of the Act.

6. That approach by the tribunal attracted the attention of the applicant in these proceedings and finds its expression, in the first ground of the application for review.  It is in these terms:

   The second respondent interpreted the relevant regulation incorrectly.

   Particulars.  The second respondent decided that it did not need to make a finding whether the applicant was a spouse in circumstances when the applicant was not the holder of a substantive visa.

7. There was no error on the part of the tribunal, procedural or otherwise, in determining the application before it in the way in which it did.  The tribunal was not obliged to come to a conclusion about the spousal issue before it determined whether the applicant met other criteria and in particular, criterion 3001.  The first ground of the review application before me must fail. 

8. The second ground of the review application suggests that the tribunal failed to take into account “all of the relevant information and documentation when determining the issue as to whether or not the applicant met the schedule 3 criteria”. Some more background is necessary to understand and to determine that issue.

9. The applicant was granted a subclass 572 student visa in 2010.  It was cancelled in September, 2011 before it expired by effluxion of time.  At the time that the applicant applied for his partner visa in December, 2012, he was not the holder of a substantive visa.  For reasons that will become clear shortly, that is important. 

10. The granting of a partner visa is a two step process.  The first step in the process is the granting of a temporary or provisional visa, which by its very nature, is short term. 

11. In the event that the visa holder and his or her sponsor remain in the relevant relationship for a period of two years following the grant of the temporary visa, the visa holder may become entitled to a permanent partner visa. Subclass 820 is the temporary visa and is the visa which was in issue before the Tribunal. The criteria necessary for the applicant to satisfy to secure a grant of that visa are set out in item 820 of Schedule 2 to the Regulations. For the purposes of this case, clause 820.211 is important. Also important are the criteria specified in item 3001, to which I have already referred, item 3003 and item 3004 all of which are found in Schedule 3 to the Regulations.

12. There is no dispute, it seems, that the applicant in this case was required to satisfy the criteria in items 3001, 3003 and 3004 in Schedule 3 of the Regulations. He says in argument, although there is no evidence to support this, that he was not told by the Department of Immigration when he lodged his application for the partner visa that he had to meet the criteria specified in Schedule 3 to the regulations. That is as I understand his oral submissions to me this morning.

13. That does not form part of the grounds of his review and I note that he was represented by a lawyer when his application was filed. But even if it was the case that the Department did not bring to his attention that it was necessary to comply with Schedule 3 of the Regulations at the time he applied for his visa, it is not to the point. It is for the applicant to satisfy the Minister of the relevant matters required by the Regulations to secure the grant of the visa. Although I do not have the authorities at my finger tips, it is the case that no estoppel operates against a statute, so that any representations by departmental officers, even if relied upon by the applicant, do not bind the first respondent and cannot effect the proper operation of the Act and Regulations.

14. As I have already indicated, there was no dispute that at the time the applicant applied for his partner visa, he did not hold a substantive visa.  In those circumstances, he did not meet the requirements of criterion 3001 because his application for the visa was not lodged within 28 days of the relevant day, namely, the day on which he last held a substantive visa.  However, that criterion can be waived.  It can be waived when the Minister is satisfied that there are compelling reasons for not applying the criterion.

15. The issue that concerned the tribunal was whether there were compelling reasons for not applying that criterion.

16. The authorities reveal that whether or not there are compelling reasons is a matter of subjective judgment for the tribunal.  It is not a matter of objectivity.  The tribunal must identify the relevant matters said to amount to compelling reasons, assess them and form a judgment about whether there are compelling reasons leading to a waiver of the relevant the criteria. 

17. Having regard to the tribunal’s reasons for decision, that is what the tribunal did here.  It correctly instructed itself as to the law to be applied and identified each of the circumstances that the applicant contended led to the conclusion that compliance with the relevant criteria should be waived.

18. The grounds of the application for review do not particularise any particular circumstances that it is said the tribunal ignored or did not take into account when it should have. Those matters were not expanded upon in oral argument. All that was said was that the department had not brought to the applicant’s attention the necessity to meet the requirements of Schedule 3. The tribunal expressly told with the applicant that if it was not satisfied that there were compelling reasons for waiving the relevant criteria, then the decision under review would be affirmed. To read from the Tribunal’s reasons:

    The applicant stated that he was just married to the sponsor and he did not want to be separated from her.  He said it was his first love in four years and he wanted to live with her.  He said if he left Australia there would be no one to look after her.  The sponsor told the Tribunal that she suffers from migraines.  She said she was hospitalised on one occasion for her migraines and underwent some investigations to rule out an alternative cause.  When she experiences a migraine she takes medication.  She said she will be sick and alone if the applicant is forced to leave Australia.

19. The tribunal accepted the evidence from the sponsor about her suffering from migraines. The tribunal took into account when the application for the visa was lodged, the applicant and the sponsor had been in a relationship for just three months. The tribunal ultimately concluded that the matters raised by the applicant did not amount to compelling reasons for not applying the Schedule 3 criteria. For the sake of completeness, I point out that the tribunal, in reaching that conclusion, did so having referred to the relevant requirements in the Policy Advice Manual and the explanatory statement to statutory rule number 75 of 1996.

20. In my view, the applicant has not established that the tribunal’s decision is affected by jurisdiction error.  In those circumstances, the application must fail and it is dismissed. 

21. Costs in these applications generally follow the event, unless there are special circumstances that demonstrate that the usual rule as to costs ought not be applied.  There are no special circumstances here.  Costs should follow the event. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 April 2015.

Date:  14 May 2015