Singh v Minister for Immigration
[2015] FCCA 533
•18 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 533 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant applicant a Partner (Migrant) (Class BC) visa – Applicant made request for written materials from Tribunal under s.362A of Migration Act 1958 (Cth) – no written materials provided to applicant – Whether applicant was denied procedural fairness – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 357A, 359A, 360(1), 362A, 368(3) Migration Regulations 1994 (Cth), rr.1.15A, 1.15A(3), 100.211(2) |
| Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNPG & Anor(2010) 115 ALD 303 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SANJAY SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 879 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 19 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2015 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person |
| Solicitor for the First Respondent: | Ms K Hooper of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
A writ of certiorari issue quashing the decision of the Second Respondent made on 6 March 2014.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 879 of 2014
| SANJAY SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 25 September 2014 by the applicant, Sanjay Singh, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member A. Duri on 6 March 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Partner (Migrant) (Class BC) visa.
The representatives of the Minister filed on 7 May 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
The applicant filed an affidavit affirmed by himself on 1 September 2014 (the “Singh Affidavit”). Annexed to the Singh Affidavit is a copy of the transcript of the applicant’s hearing before the Tribunal.
Background
In setting out the following background material I have quoted directly from the Court Book and Minister’s written submissions. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a male citizen of Fiji. The applicant applied for Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visas on 4 August 2008. The applicant was granted the temporary visa and notified of this decision by letter dated 9 May 2009 (CB 43-46).
The applicant arrived in Australia on 22 May 2009. Subsequently, the applicant provided additional information in relation to his application for the permanent visa, and the Minister’s Department sent correspondence requesting the provision of certain information. Officers of the Minister’s Department conducted a home visit, at a nominated address, and prepared a report dated 13 July 2011 (CB 118-119). On 16 August 2011, an officer of the Minister’s Department interviewed the applicant and sponsor, and prepared a report of that interview (CB 120-132). By letter dated 19 September 2011, the Minister’s Department wrote to the applicant inviting him to comment on certain adverse information, namely relevant findings of the home visit and interview (CB 139-143). The applicant provided a response (CB 144-168).
A delegate of the first respondent refused the permanent visa application on 20 January 2012 (CB 184-202). The delegate set out the relevant factual chronology, commencing at CB 184. The delegate relied inter alia on evidence contained in the home visit and interview reports, and concluded that the applicant and sponsor were not in a genuine and continuing spouse relationship.
The applicant sought review by Tribunal application lodged on 17 February 2012 (CB 203-232). He attached the delegate's decision to his Tribunal review application form. The applicant attended a hearing before the Tribunal on 19 December 2013 (CB 257-258). By letter dated 3 January 2014, the Tribunal invited the applicant to comment on or respond to information in accordance with the requirements of s.359A of the Migration Act (CB 272-276). By decision dated 6 March 2014 the Tribunal affirmed the decision under review, refusing to grant the applicant a Partner (Migrant) (Class BC) visa (CB 283-294). The Tribunal rejected the applicant's credibility and did not accept the applicant and sponsor were in a genuine spousal relationship.
Current Proceedings
The application for review of the Tribunal’s decision filed in this Court pleads the following four grounds of review:
1. The Migration Review Tribunal decision is unreasonable and in the statement of decision and reasons the Tribunal stated that I first arrived in Australia on a subclass 300 prospective spouse visa. This is incorrect as I entered Australia as a dependent child on my father’s prospective spouse visa and the statement might have affected the decision of the Tribunal.
2. My wife and I are still validly married, support each other and the minor discrepancies listed by the Tribunal should not be taken to refuse out application and such is contrary to the law and the evidence given including that a partner visa approval was approved overseas and the discrepancies, should not lead to refusal.
3. The Migration Review Tribunal ignored our commitment which was demonstrated by our attendance to the hearing and placed weight on departmental visit and other minor issues which are irrelevant to the important issue which confirm our strong relationship.
4. While the Tribunal accepted my letter of 14 February 2014 yet failed to act on it and failed to further give us the opportunity to reply to further particulars in the light of our letter and the evidence on file. The Tribunal acted unjustly and denied me natural justice.
Applicant’s Submissions
The applicant handed up a typed document at the hearing which he sought to rely on. Having regard to this document, it can be treated as the applicant’s written submissions. The applicant was asked if he had any oral submissions to make in support of his written submissions, but indicated he did not.
Further, when asked if he had any oral submissions to make in reply to the Minister’s written and oral submissions, the applicant indicated he did not.
Minister’s Submissions
The Minister submits Tribunal rejected the applicant's and sponsor's credibility and found that they were not in a genuine relationship. The Tribunal considered the circumstances prescribed by reg.1.15A(3) of the Migration Regulations 1994 (Cth) (the “Migration Regulations”) from [38] of its reasons, but otherwise primarily rejected the application for reason of its adverse credibility finding. The Tribunal’s findings of fact were reasonably open to it on the evidence and material before it, and for the reasons given.
The Tribunal complied with its statutory obligations including pursuant to ss.359A and 360 of the Migration Act. Specifically with respect to s.359A, the Tribunal complied with its s.359A obligations, to the extent they arose.
Several items of information are relevant to this compliance. As summarised above, while the visa application was before the Minister’s delegate, a home visit and an interview of the parties were conducted. Both resulted in conclusions adverse to the applicant. The delegate invited the applicant to comment on the gist of certain adverse information arising out of the interview and home visit. The applicant did so. Aspects of the adverse information obtained at the interview and home visit are set out in the delegate's decision record. The applicant submitted the delegate's decision to the Tribunal and therefore s.359A(4)(b) applies to exempt the information identified by the delegate from the Tribunal's s.359A obligations.
Further and in any event, the Tribunal wrote to the applicant by letter dated 3 January 2014, pursuant to s.359A of the Migration Act. The information particularised by the Tribunal in its s.359A letter was information contained in the home visit report and interview report, and oral evidence by the sponsor at the Tribunal hearing. The Tribunal explained the relevance of the particularised information to the review, and invited the applicant to comment or respond in writing by a specified date. The applicant sought additional time to respond, and provided a substantive response on or about 14 February 2014 (CB 280).
In addition to providing his various explanations, the applicant said:
a)He would appreciate the Tribunal giving him copies of all of his documents so he could ask a friend to read and explain them to him; and
b)“Please put any adverse information to us if you are not happy with this reply.”
The Tribunal considered these two procedural matters in its decision. It declined to issue any further invitation to comment. It recorded that the applicant was free to formally apply for any documents he wanted and declined any implicit request to defer its decision. It is submitted, first that no such request was implicit and, in any event, on the material before it, it is not demonstrated that the Tribunal erred in its exercise of discretion not to adjourn the review. No reason was advanced as to why the Tribunal should adjourn the review.
The Tribunal complied with its s.359A obligations, to the extent they arose. The matters the Tribunal relied on adversely in its decision correspond to those it put to the applicant its s.359A letter (that is, the Tribunal did not exceed the particulars it put to the applicant under s.359A, in its findings and reasons). There is no evidence that any matter not put to the applicant under s.359A, and which was “information” for s.359A purposes, was information that would form the reason or part of the reason for an adverse decision.
The Tribunal thoroughly considered the applicant's response to its s.359A letter. It was under no further obligation to invite the applicant's comment, for instance, on why it was not minded to accept his explanations as satisfactory. In so far as the applicant's fourth ground complains that the Tribunal did not write to the applicant, in advance of its decision, and invite his comment upon the reasons it was minded to decide against him, s.359A imposed no such obligation. As was held by the joint judgment of the High Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [18] quoting VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, the word 'information' in section 424A (and section 359A, being the Tribunal-equivalent):
[D]oes not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …
Moreover, as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 makes clear (at [48]) the Tribunal is not obliged pursuant to s.360(1) to provide a running commentary upon what it thinks about the evidence that is given.
The grounds of the application to this Court are unparticularised. The applicant's first ground takes issue with the Tribunal’s reference to him as having arrived in Australia on a Subclass 300 visa. Technically, that is correct. The applicant was a secondary visa applicant on his father's Subclass 300 visa application. The applicant therefore held such a visa, granted to him on the basis he met the secondary criteria for the visa grant. This ground does not disclose an allegation of jurisdictional error.
The applicant's second and third grounds are a clear invitation to merits review. The fourth ground is addressed in the Minister’s submissions above. Further with respect to s.360, it is submitted that the transcript discloses that the Tribunal member identified to the applicant the determinative issue of the genuineness of the relationship, and also raised with the applicant more specific concerns throughout the course of the hearing.
The Minister submits the application should be dismissed and the applicant ordered to pay the Minister’s costs in a fixed amount.
Ms Hooper, appearing for the Minister at the hearing, submitted she was content to rely on the Minister’s written submissions and did not address the applicant’s written submissions in further detail other than to say they invited the Court to engage in impermissible merits review.
Consideration
Ground 1
The first ground of the application raises two claims. The first claim raised is that the Tribunal’s decision was “unreasonable”. This claim has not been particularised any further by the applicant in either written or oral submissions.
Having regard to this ground, I am guided by the authority of Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 per Heydon J at [78] and Crennan and Bell JJ at [130]-[131]. Their Honours found if reasonable minds could differ about the Tribunal’s reasoning, it could not be said to be illogical (see also SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 at [15] and [85]).
The test for “unreasonableness” is in a similar vein to the test for “illogicality” or “irrationality”. In Attorney-General (New South Wales) v Quin (1990) 170 CLR 1, the High Court explained the requirement as follows at 36:
Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.
I have had regard to the Tribunal’s Decision Record in detail and am not satisfied there is anything contained in the decision that is unreasonable, illogical or irrational. Accordingly, this aspect of the ground should be dismissed.
The second aspect of the ground raises a claim that the Tribunal incorrectly stated the type of visa the applicant held when he first arrived in Australia in 1997 and this may have affected the Tribunal’s decision. No further particularisation of this ground is available, nor is there any statement of how such a statement could have affected the Tribunal’s decision.
The Minister submits, however, “The applicant was a secondary visa applicant on his father's Subclass 300 visa application. The applicant therefore held such a visa, granted to him on the basis he met the secondary criteria for the visa grant. This ground does not disclose an allegation of jurisdictional error.” I accept this submission as the applicant has provided no evidence nor made any further submission in support of this claim, or stated how such a finding could have materially affected the Tribunal’s decision in relation to his review application.
In any event, a wrong finding of fact is not an error of law. Noting the Court’s findings directly above, even if the applicant’s complaint were made out, any resulting error by the Tribunal would have been purely factual in nature: see Minister for Immigration and Citizenship v SZNPG & Anor(2010) 115 ALD 303 at [20].
Accordingly, this ground cannot be sustained and should be dismissed.
Grounds 2 and 3
These grounds allege that the Tribunal, by taking into account what can be described as irrelevant considerations, entered into error when refusing to grant the applicant a visa. Though not specified, having regard to the Decision Record, these purported “irrelevant considerations” are found at [38]-[51] (CB 291-293).
In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, the High Court considered the obligation to take into account a relevant consideration and, conversely, the obligation not to consider irrelevant matters. Mason J expressed it as follows at 40:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …
The applicant’s visa application was assessed under subclause (2) of reg.100.221 of the Migration Regulations and I am satisfied that this was the correct subclause under which the visa application should have been assessed.
A requirement of reg.100.211(2)(b) of the Migration Regulations is that the applicant and his sponsor satisfied s.5F of the Migration Act on the basis that they were in a married relationship. Subsection 5F(3) provides that the Migration Regulations may make provisions relevant for the determination of whether one or more of the conditions in subsections (2)(a), (2)(b), (2)(c) and (2)(d) exist. Relevantly, reg.1.15A(3) stated at the time of the applicant’s visa application:
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
Regulation 1.15A states that the decision-maker, in this case the Tribunal, must have regard to all of the circumstances of the relationship, noting particular aspects the decision-maker should consider when making a determination as to whether, as in this case, the applicant was in a married relationship with his sponsor.
On a fair reading of the relevant paragraphs of the Decision Record, noting the relevant legislation and the authority of his Honour Mason J in Peko-Wallsend (supra), I am of the view the Tribunal has not taken into account irrelevant considerations when considering the applicant’s visa application. I am satisfied the findings complained about by the applicant were in fact within the scope of reg.1.15A(3).
To the extent that the applicant in grounds 2 and 3 seeks to invite the Court to review the merits of the Tribunal’s findings, this seeks to engage the Court in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.
Accordingly, these grounds cannot be sustained and should be dismissed.
Ground 4
On 3 January 2014, after the Tribunal hearing which had occurred on 19 December 2013, the Tribunal sent a letter to the applicant pursuant to s.359A of the Migration Act inviting him to comment on or respond to information the Tribunal considered would, subject to his response, form the reason, or part of the reason, for affirming the delegate’s decision (CB 272-275).
The applicant then responded by letter dated 14 February 2014 (CB 280-282) (also recorded at [29] of the Decision Record). Specifically, the applicant complains in respect of two passages recorded in his letter of 14 February 2014 which state:
… Please put any adverse information to us if you are not happy with this reply.
The applicant complains he was not afforded an opportunity after he’d sent the 14 February 2014 to send reply to any further particulars that might be requested by the Tribunal and, as a result, was denied natural justice.
The applicant, however, has not further particularised this ground to identify what particulars he should have been given further opportunity to comment on.
Having regard to the contents of the Court Book, and the lack of particularisation of this ground by the applicant, I accept the Minister’s comprehensive written submissions which have been reproduced at [13]-[20] above.
The Tribunal complied with its s.359A (of the Migration Act) obligations, insofar as they arose. The applicant was given an opportunity was given an opportunity to respond to the Tribunal’s s.359A letter, and did. The Tribunal considered the applicant’s response to the letter in its Decision Record and, further, did not exceed the matters put to the applicant in its reasons. There was no further obligation pursuant to s.359A to invite any further comments or particulars from the applicant (noting the authority of SZBYR (supra) see [19] above).
I am satisfied this ground cannot be sustained for the reasons stated above.
Written submissions
Having regard to the applicant’s written submissions handed up at the hearing, a large amount of the contents therein seeks to cavil with the merits of the Tribunal’s decision and, accordingly, seeks to engage the Court in impermissible merits review (see Wu Shan Liang (supra) at 272). These submissions need not be addressed in any further detail.
The written submissions also raise similar claims as those contained in Ground 4 of the application. The applicant states he was denied natural justice by not being given a further hearing or opportunity to comment on any adverse information, despite explicitly requesting such an opportunity in his letter dated 14 February 2014. For the reasons stated above at [38]-[43], however, this submission cannot be sustained. The Tribunal clearly complied with its obligations under s.359A and was under no obligation to invite further comment from the applicant.
The applicant also raised a complaint that he was not provided with copies of documents relating to his visa application, despite expressly requesting them in his letter dated 14 February 2014.
The applicant in his letter to the Tribunal of 14 February 2014 stated:
I appreciate if the Tribunal can give me copies of all my documents so that I can ask a friend to read them to me and explain the contents of each document.
Section 362A of the Migration Act relevantly provides:
Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2) This section does not override any requirements of the Privacy Act 1988 . In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
As the Tribunal’s decision was not handed down until 7 March 2014, subsection 362A(3) did not apply in respect of the applicant’s request.
In its Decision Record at [34] (CB 290) the Tribunal stated:
34. The tribunal further notes that Mr Singh requested a copy of all his documents so that he can ask a friend to read them to him and explain the contents of each document. Mr Singh is free to apply for a copy of any documents through the appropriate channels. The tribunal assumes that implicit in Mr Singh’s request for access to documents is a suggestion for the tribunal to defer making a decision. However as noted above Mr Singh has had a hearing and the tribunal is satisfied that it has fulfilled its obligations under s.359A.
Having regard to the Court Book, there is no evidence the Tribunal, between the time it received the applicant’s letter dated 14 February 2014 and 6 March 2014 (being the date of the handing down of the decision), attempted to provide the applicant with copies of documents relating to his visa application or to inform the applicant of the “appropriate channels” through which such a request could be made.
Having regard to the Tribunal’s website, there is a form available titled “Request for access to written material held by the Tribunal under Section 362A of the Migration Act” which the Tribunal has made available for visa applicants and their nominated assistants to make applications under s.362A.
Neither the Migration Act nor the Migration Regulations require that an application for written material made to the Tribunal must be made by way of the form provided by the Tribunal on its website.
The Tribunal accepted the applicant had made a request for documents (written material) held by it. This request was also made before the exception provided for in subsection 368(3). It follows then that the applicant was entitled to have access to written material relating to his visa application which, having regard to [34] of the Decision Record, did not occur. What utility may have come of this exercise is unknown, however, that is not for this Court to decide.
Consequently, having regard to s.362A when read together with s.357A of the Migration Act, the Tribunal has breached its procedural fairness obligations to the applicant. It follows the application should be allowed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 18 March 2015
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