Singh v Minister for Immigration

[2015] FCCA 826

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 826

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – 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.476, 116(1)(b)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SAHIB AJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 565 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

The Applicant appeared in Person

Solicitors for the Respondent: Mr J. Pinder
Minter Ellison

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 565 of 2015

SAHIB AJIT 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 in respect of the decision within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 16 February 2015 referring a decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The application identified the following grounds:

   1. Jurisdictional error & Lacked jurisdiction

   2. Error in interpretation of legislation

   3. Natural Justice

3. Under the first return date of the application the last sentence provides as follows:

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

4. The Court identified to the applicant that it was concerned that the application does not identify an arguable jurisdictional error.  The applicant candidly conceded that he wished to obtain a lawyer, so that he could try and advance an argument and that he wished to have an adjournment so that he could seek to do so.  There is no utility in granting an adjournment of proceedings that are doomed to failure as it will only add to the costs of the parties and utilise limited Court time.

5. I am clearly satisfied that the proceedings are doomed to failure because of the findings made by the Tribunal that it was open to the Tribunal to make.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

6. This is a case where the Tribunal wrote to the applicant on 5 January 2015 inviting the applicant to attend a hearing and give arguments on 10 February 2015.  The applicant was advised that if he did not attend and a postponement was not granted the Tribunal could make a decision on his case without further notice.  It is the position that the applicant responded to the invitation through his representative indicating that he would attend the hearing and he indicated that the sponsor would not attend. 

7. However, the visa applicant did not appear before the Tribunal on the day and at the time and place at which it was scheduled to appear.  The Tribunal made efforts by telephone to contact the applicant’s representative who advised that he was not able to contact his client.  By the end of the day on 13 February 2015 the Tribunal had not received any communication from the visa applicant and it was in those circumstances the Tribunal decided to make a decision on the review without taking any further action. 

8. It was open to the Tribunal to make that decision to proceed with the review without any adjournment in the circumstances that have been identified.  There is no jurisdictional error in the Tribunal deciding to proceed to make a decision on the review in the circumstances identified.  Materially, that means the finding that the requirements of s.5F were not met was clearly open to the Tribunal.  Relevantly the Tribunal found:

   9. Clauses 820.211(2) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

   10. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   …

   12. In forming an opinion whether they are in a spouse relationship consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and the nature of their commitment to each other.

   …

   14. Form 888 declarations were provided from the visa applicants two cousins with whom he shared a residence. The witnesses state that the visa applicant and the sponsor lived in the same house as them. However there is no other independent evidence to support this claim. There is also no other evidence to support the social aspects of the relationship apart from the declarations by the visa applicant’s two cousins. No evidence was provided in support of the nature of the commitment the parties have for each other. The tribunal therefore has limited evidence of the relationship at the time of application and no further evidence in support of the relationship as it now stands. The tribunal has therefore determined that the evidence is insufficient and the visa applicant does not meet the criteria for the grant of a Partner (Temporary) (Class UK) visa.

   15. The tribunal finds that at the time the application was made and the time of decision the parties do not satisfy s5F of the Act as there is no evidence the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all other and the relationship between them is genuine and continuing. There is no evidence that they live together or do not live separately and apart on a permanent basis.

   16. Therefore the tribunal cannot be satisfied on the limited evidence provided that the requirements of s5F are met at the time of application and the time of decision.

   17. Furthermore, the visa applicant has not claimed and there is no evidence before the tribunal that he meets the alternative criteria in 820.221(2) or (3). For example, there is no evidence that the sponsor is deceased, or that there is a child from the relationship or that the visa applicant suffered family violence. There is also no evidence that the alternative criteria in cl.820.211(7), 820.211(8), 820.211(9), 820.221(2), 820.221(3) (death, family violence, child exceptions) are met.

   18. Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. Therefore the applicant does not meet cl.820.211(2) or cl.820.221.

9. The findings by the Tribunal were clearly open.  The findings can not be said to lack an evident and intelligible justification.  I am clearly satisfied the proceedings have no reasonable prospect of success. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015