SINGH v Minister for Immigration

[2020] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 522

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Partner (Temporary) (Class UK) (Subclass 820) visa – whether the Tribunal did not take into consideration the entire chain of circumstances which constitute compelling reasons under Schedule 3 criteria of the Migration Act 1958 (Cth) – whether the Tribunal did not give any weight to the emotional and financial hardship of the applicant – whether the Tribunal did not contend the merits of the application –Whether the Tribunal was unfair, irrational or incomprehensible in making its decision – whether the Tribunal made any jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362, 375

Migration Regulations 1994 (Cth), cl 820.211 of Schedule 2, 3001, 3003, 3004

of Schedule 3

Cases cited:

ALF16 v Minister for Immigration and Border Protection [2019] FCA 1457

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Waensila v MIBP [2016] FCAFC 32

Applicant: JATINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3528 of 2017

Judgment of: Judge Humphreys

Hearing date: 10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Parramatta

Delivered on: 27 March 2020

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3528 of 2017

JATINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India. The applicant first came to Australia on 4 February 2008 on a TU 573 Student visa, which ceased on 30 September 2011. On 5 September 2011, the applicant lodged an application for a VC 485 Skilled Graduate visa which was refused.

2. The applicant unsuccessfully sought a merits review of the refusal of his visa with the Migration Review Tribunal. The applicant then sought Ministerial Intervention which was not considered.

3. On 8 January 2014, the applicant applied for a XA PV Protection visa which was again refused by a Delegate of the Minister for Immigration (“the Delegate”) and affirmed by the Refugee Review Tribunal (RRT) on 7 December 2015.

4. On 21 December 2015, the applicant sought to make an application for an Onshore Partner visa. That application was deemed invalid.

5. On 4 January 2016, the applicant made a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa, on the basis of his marital relationship with Ms CS, an Australian citizen.

6. As the applicant did not hold a substantive visa at the time of the Partner visa application, it was a requirement for the grant of the visa that the applicant satisfy cl 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Specifically, that subclause states that the applicant must satisfy Schedule 3 criteria being 3001, 3003 and 3004 of the Regulations, unless the Minister was satisfied there are compelling reasons not to apply those criteria.

7. On 5 October 2016, the Delegate refused to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa. The delegate found that the applicant did not satisfy criterion 3001 of the Regulations, as he had not applied for the Partner (Temporary) (Class UK) (Subclass 820) visa within 28 days of the cessation of his last substantive visa. The delegate was not satisfied that there were compelling reasons not to apply the Schedule 3 criteria of the Regulations.

8. The applicant then sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 26 October 2016, the delegate issued a certificate pursuant to s 375A of the MigrationAct 1958 (Cth) (“the Act”), covering information in the nature of an allegation received from a source with an expectation of anonymity.

9. On 4 August 2017, the Tribunal invited the applicant to appear before it, to give evidence and present arguments for a hearing scheduled for 3 October 2017. The invitation was sent to the applicant via his migration agent, who was appointed as his authorised recipient. Hearing date reminders were sent to the applicant by text message on 25 and 29 September 2017 in the following terms:

   “Reminder – Your AAT hearing is on 03/10/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333”

10. The applicant did not appear at the hearing on 3 October 2017. That day, the Tribunal made a decision to dismiss the application pursuant to

    
    

    s 362B(1A)(b) of the Act. By a letter dated 17 October 2017, the applicant applied to the Tribunal for reinstatement of his review application. The applicant explained in his letter that the day before the hearing, he and his wife had had an argument that disturbed him badly and that he slept in on the day of the hearing.

11. On 24 October 2017, the Tribunal, pursuant to s 362B(1C)(b) of the Act, confirmed its decision to dismiss the application. The Tribunal considered the reasons advanced by the applicant for not attending the hearing and considered they would have minimal impact on the applicant’s ability to have attended the hearing.

12. The Tribunal was not satisfied that the reasons provided by the applicant for his non-attendance at the hearing, were factors which were out of his control, as he had asserted. In light of all the circumstances, the Tribunal did not consider it appropriate to reinstate the application.

Grounds of Application

1. In the applicant’s application to the Court, five grounds of appeal were advanced in support of his case. They are listed below verbatim:

   1.   The decision of Full Federal Court in Waensila v MIBP [2016] FCAFC 32 was not followed while taking into consideration the entire chain of circumstances which constitute compelling reasons under the Schedule 3 criteria, arising not only at the any time of lodgement of visa application and still ongoing even thereafter. The ongoing emotional and financial hardships of visa applicant and sponsor were not given any weight by the Delegate and Tribunal.

   2.   The Delegate’s conclusion about their hardships without any substance, as deliberately manipulate their circumstances to give rise to compelling reasons, is totally unjustified for refusal to waive Schedule 3 criteria.

   3.   The merits of the application could properly be taken into consideration to determine a legal issue of some importance.

   4.   The determination of application has resulted in unfairness to visa applicant and sponsor.

   5.   The findings made in the visa application appears irrational or incomprehensive.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. At the commencement of the hearing, the process that the Court would follow in hearing the application was carefully explained to the applicant. The applicant confirmed that he had a copy of the Court Book and the first respondent’s submissions. The applicant told the Court that he had read and understood both documents. The applicant, when invited to, did not make any oral submissions to the Court. When given a further opportunity, the applicant did not wish to make any comments in response to the first respondent’s oral submissions.

The First Respondent’s Submissions

1. The first respondent noted that the applicant advanced five grounds of appeal in his application to the Court. The first respondent submitted that the applicant identifies the Tribunal’s decision of 24 October 2017, as the decision under challenge, however, amongst the relief sought, he states “judicial error in AAT decision” and “judicial error in DIPB decision”.

2. Counsel submitted that none of the grounds agitated by the applicant identify error by the Tribunal and entitle the applicant to the relief sought. The Court does not have any jurisdiction to make orders with respect of the decision of the delegate.

3. It was submitted that Grounds 1 and 2 appear to challenge the delegate’s decision. The Court has no jurisdiction to interfere with that decision. To the extent that Ground 1 is a challenge to the Tribunal’s decision, it asserts error by the Tribunal in failing to follow Waensila v MIBP [2016] FCAFC 32, cited above. No occasion arose for the Tribunal to consider the applicants compelling reasons not to apply the Schedule 3 criteria, because the applicant failed to appear at the hearing to which he was invited resulting in his application being dismissed. The applicant then failed to persuade the Tribunal to reinstate his application.

4. Counsel submitted that Grounds 3, 4 and 5 are similarly without merit. In Ground 3 the applicant appeared to contend that the merits of the application needed to be taken into account. Section 362B(1C) of the Act, simply states that the Tribunal must:

   (1C)(a) if it considers appropriate to do so -- reinstate the application

   or

   (b) confirm the decision to dismiss the application, by written statement under s 368

5. The first respondent accepted however, that the Tribunal must consider the exercise of its discretionary power to reinstate in a reasonable manner (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”)). In this case, the Tribunal considered the explanation offered, but was not satisfied it was sufficient for the matter to be reinstated. The Tribunal did so by express reference to the matters raised by the applicant in his correspondence. The Tribunal had regard to the statutory scheme and broader considerations. The first respondent submitted that the Tribunal lawfully exercised its discretion not to reinstate the matter.

6. In respect of Grounds 4 and 5, the applicant asserts unfairness, irrationality or incomprehensibility, presumably in the Tribunal’s reasons for the decision not to reinstate the application. The first respondent submits that the Tribunal complied with the requirements of procedural fairness in conducting the review.

7. The Tribunal’s approach in its findings, were neither irrational nor incomprehensible. To the contrary, the first respondent submitted that the Tribunal, in its reasons, specifically and clearly indicated the Tribunal’s decision making process and identified the matters it took into account, in considering whether or not to exercise its power to reinstate. These grounds do not identify any jurisdictional error.

8. As a matter of fairness, the first respondent notes that a non-disclosure certificate was issued. If the Court or the applicant were to require the Minister to divulge the contents of the protected disclosure, the Minister would seek to claim public interest immunity in the document on the basis that its disclosure would reveal the source of the allegations.

9. The first respondent submitted firstly, that the certificate was validly issued and secondly, that the Tribunal did not refer in its reasons to the information contained within the material covered by the certificate nor did it act upon it. Rather, it identifies the circumstances of the case and the express submissions of the applicant as to the matters that it took into account for the purposes of considering whether or not to exercise its discretion to reinstate the application.

10. The Tribunal assessed the reasons given by the applicant as having “minimal impact” on his ability to attend the hearing and considered the factors described by the applicant as not being matters outside of his control (see in a slightly different context ALF16 v Minister for Immigration and Border Protection [2019] FCA 1457 at [16]).

11. It was finally submitted that any jurisdictional error that might arise, which is not admitted, does not pertain to the disclosure of the existence of the s 375A certificate of the Act, that is it is not an error that is material to the outcome of the review.

Consideration

1. This is a matter that revolves around a decision of the Tribunal not to reinstate an application in circumstances where the applicant did not attend his hearing and his reasons for not attending were not considered to be sufficient to justify reinstatement.

2. In relation to the existence of the material covered by the s 375A certificate, the Court is satisfied that it had absolutely no impact on the decision of the Tribunal as to whether to reinstate the application and that for all intents and purposes, it was irrelevant to that consideration.

3. The Court concurs with the first respondent that there is no jurisdiction for this Court to review the decision of the Delegate. The Court is satisfied that all procedural fairness requirements required under the relevant provisions of the Act were satisfied. The applicant was invited to attend the hearing on 3 October 2017 and the Court is satisfied that the requirements under s 360 and s 360A of the Act were complied with.

4. The invitation was sent to the applicant’s migration agent, as his authorised representative. Further, hearing reminders were sent to the applicant by text message on two occasions as set out above. The applicant did not appear. The Tribunal made the decision to dismiss the application pursuant to s 362B(1A)(b) of the Act. There is nothing unlawful in the actions of the Tribunal to dismiss the matter.

5. The applicant was duly advised of this decision, together with his rights to seek reinstatement. In a letter dated 17 October 2017, the applicant set out his reasons for non-attendance. These included that the day before the hearing, he and his wife had had an argument and that this disturbed him badly and he slept in on the day of the hearing. Pursuant to s362B(1C)(b) of the Act, the Tribunal considered his reasons but was not satisfied that his non-attendance at the hearing was a result of factors that are outside his control, as he had asserted. That Tribunal formed the view that it did not consider it appropriate to reinstate the application.

6. The Court considers the procedure that was followed by the Tribunal to be unremarkable. The decision not to reinstate the matter, to the Court’s mind, was within the realm of the decisional freedom that the Tribunal has in considering this type of matter. There is nothing irrational or illogical in the reasons of the Tribunal, nor is there anything within the decision that lacks an evident and intelligible justification (see Li at [76]).

7. The test for legal unreasonableness is ‘stringent’ and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the applicant disagrees with the consideration, the matters or the evaluative judgements made by the decision-maker (see Li at [30] and [113]).

8. The Court agrees with first respondent in that Grounds 1 and 2 appear to challenge the delegate’s decision, which is not within the jurisdiction of this Court. Ground 3 appears to challenge the decision on the grounds of its merits. The statute does not express any considerations that must be taken into account by the Tribunal in considering whether or not to reinstate. The Tribunal was not satisfied with the explanation offered by the applicant and it is entitled in the circumstances, not to exercise its discretion to reinstate.

9. Grounds 4 and 5 assert unfairness, irrationality or incomprehensibility, presumably in the Tribunal’s decision not to reinstate the application. The Court is satisfied that the Tribunal’s approach to its findings was clear, gave appropriate reasons and came to a conclusion on matters that were within its discretion to take into account. Grounds 4 and 5 in my view, simply invite merits review which is not permissible.

10. Given the applicant is unrepresented, the Court has carefully considered the decision of the Tribunal to see if there is any ground of jurisdictional error which has not been articulated. The Court can find none.

Conclusion

1. The application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 27 March 2020