Singh v Minister for Immigration

[2014] FCCA 1710

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1710

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Class UK (Partner-Temporary) visa – non-attendance at Tribunal – non-attendance at hearing – whether grounds made out – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 353(1), 362B, 476

Migration Regulations 1994 (Cth), reg.1.15A(3), Schedule 2, cll.820.211(2)(a) and 820.221(2)(a)

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2013] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Applicant: TARSEM SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 46 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 28 July 2014

Date of Last Submission: 28 July 2014

Delivered at: Perth

Delivered on: 13 August 2014

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr P R Macliver

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents Australian Government Solicitor

ORDERS (made on 28 July 2014)

1. The application be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $6646 by 28 August 2014.

3. Reasons for Judgment will be published from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 46 of 2014

TARSEM SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Introduction

1. The applicant applies to this Court for judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the Migration Review Tribunal[2] affirming a decision of a delegate[3] of the first respondent, the then Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection,[4] refusing to grant the applicant a Class UK (Partner-Temporary) visa.[5]

   [1] “Migration Act”.

   [2] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 178-182.

   [3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 109-117.

   [4] “Minister”.

   [5] “Temporary Partner Visa”.

2. When the matter was heard on 28 July 2014 the Court made the following orders:

   1.The application be dismissed.

   2.The applicant pay the first respondent’s costs in the sum of $6646 by 28 August 2014.

   3.Reasons for Judgment will be published from Chambers at a later date.

   These are the Reasons for Judgment referred to in order 3 above.

Temporary Partner Visa application refusal - background

1. The background to the refusal of the applicant’s Temporary Partner Visa application prior to the application to the Tribunal is as follows:

   a)the applicant is a citizen of India, who arrived in Australia holding a Subclass 572 Student visa;[6]

   [6] CB 8, 48 and 137.

   b)on 27 August 2010 the applicant applied for a Subclass 573 Student visa, and on the same day was granted a Bridging A visa;[7]

   [7] CB 109 and 137.

   c)on 2 September 2010 the applicant’s Subclass 572 Student visa ceased, and on 21 December 2010 his application for a Subclass 573 Student visa was refused;[8]

   [8] CB 109 and 137.

   d)because the applicant’s application for a Subclass 573 Student visa was refused his Bridging A visa ceased on 1 February 2011, and the applicant became an unlawful non‑citizen;[9]

   [9] CB 109 and 137.

   e)the applicant married Ms Jahnessa Evelyn Sheree Jerome[10] on 31 July 2011.[11] The witnesses to the wedding were Ms Rupinder Kaur and Mr Benjamin McErlain;

   [10] “Ms Jerome”.

   [11] CB 74-75.

   f)on 9 September 2011 the applicant lodged an application for a Temporary Partner Visa and a Class BS (Partner - Residence) (subclasses 801) visa;[12]

   [12] CB 6-38 and 109, together the “Partner Visa Application”.

g)the Partner Visa Application was supported by:

i)statutory declarations made by Ms Rupinder Kaur, Mr Surjit Singh, Mr Max Noel Ah Sam and Mr John O’Neill Christopher, each dated 16 August 2011;[13] and

ii)a statement made by the applicant on 16 August 2011, and an undated statement purportedly made by Ms  Jerome;[14] and

h)on 16 October 2012 the Delegate’s Decision was to refuse to grant the Temporary Partner Visa or Partner Residence Visa. In refusing to grant the applicant a Temporary Partner Visa, the Delegate concluded that the relationship and marriage of the applicant and Ms Jerome:

… were contrived for the purpose of you obtaining a permanent visa to reside in Australia.[15]

[13] CB 62-69.

[14] CB 72-73.

[15] CB 114.

The Tribunal proceedings

1. On 6 November 2012 the applicant applied to the Tribunal for review of the Delegate’s Decision.[16] The Partner Residence Visa was not the subject of application for review by the Tribunal.[17] The applicant advised the Tribunal that he wished correspondence to be sent to his migration agent, Mr Mark Hoath,[18] as authorised recipient.[19]

   [16] CB 123-133.

   [17] CB 104-117.

   [18] “Mr Hoath”.

   [19] CB 129.

2. By letters to the applicant dated:

   a)7 November 2012 sent to Mr Hoath, the Tribunal acknowledged receipt of the applicant’s application for review by the Tribunal, and advised him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible;[20] and

   b)22 November 2013 sent to Mr Hoath, the Tribunal advised the applicant that he was invited to appear before a Tribunal hearing on 30 January 2014 to give evidence and present arguments relating to the issues arising in his case. The letter advised the applicant that the Tribunal requested that any additional documents or information that he might wish to rely upon during the hearing be provided to the Tribunal by 23 January 2014;[21] and

   c)2 December 2013 sent to Mr Hoath, the Tribunal again advised the applicant of the Tribunal hearing on 30 January 2014, and again requested that any additional documents or information be provided to the Tribunal by 23 January 2014.[22]

   [20] CB 144-146.

   [21] CB 157-159

   [22] CB 165-166.

3. On 24 January 2014 a Tribunal officer noted that Mr Hoath had said that he had not been able to make contact with the applicant to confirm his attendance for the scheduled hearing.[23]

   [23] CB 171.

4. On 28 January 2014 the Tribunal received a response to the hearing invitation signed by Mr Hoath on 23 January 2014 advising that the applicant would take part in the hearing, and that Mr Hoath would also be attending as his representative, and that Ms Jerome would be a witness.[24]

   [24] CB 172-173.

5. On 29 January 2014 the Tribunal received a letter from the applicant advising that he had appointed a new migration agent, Mr Ross Edwards,[25] and that due to “anxiety, stress and worry” he was unable to attend the Tribunal hearing, and sought a “new hearing in Perth” (the applicant was then in Queensland), and that “we would like the opportunity to provide various important documents”.[26] In a covering document, Mr Edwards indicated that the applicant was on medication. The applicant provided a copy of a medical certificate dated 28 January 2014 arising from an examination on that date, stating that he was suffering from a “medical condition” and would be “unfit for duty” up to and including 31 January 2014.[27]

   [25] “Mr Edwards”.

   [26] See the affidavit of Arran Niall Gerrard sworn 17 July 2014 (“Mr Gerrard’s Affidavit”) Annexures “ANG2” and “ANG3”.

   [27] CB 177; Mr Gerrard’s Affidavit, Annexure “ANG1”.

6. On 29 January 2014 a Tribunal officer:

   a)contacted Mr Edwards and informed him that the request for a postponement of the Tribunal hearing had been declined;[28]

   b)emailed Mr Edwards enclosing a letter to the applicant confirming that the Presiding Member had decided not to postpone the Tribunal hearing, and that the Tribunal hearing would proceed on 30 January 2014;[29]

   c)spoke to Mr Edwards at 4.36pm, and noted that Mr Edwards confirmed that the applicant would be attending the Tribunal hearing on 30 January 2014;[30] and

   d)received an email from Mr Edwards concerning the arrangements to be involved in the Tribunal hearing via telephone link and indicating that the best number to contact him on was his mobile number.[31]

   [28] Mr Gerrard’s Affidavit, Annexures “ANG4”.

   [29] CB 177; Mr Gerrard’s Affidavit, Annexures “ANG7”, “ANG8” and “ANG9”.

   [30] Mr Gerrard’s Affidavit, Annexures “ANG6” and “ANG10”.

   [31] Mr Gerrard’s Affidavit, Annexure “ANG11”.

7. The applicant failed to attend the Tribunal hearing on 30 January 2014. The Tribunal, pursuant to s.362B(1) of the Migration Act, proceeded to make a decision without taking further action to allow or enable the applicant to appear before it.

Tribunal Decision

1. In the Tribunal Decision the Tribunal affirmed the decision not to grant the applicant a Temporary Partner Visa.[32] In so doing the Tribunal began by setting out the procedural history of the matter,[33] including the matters referred to at paragraphs 5(c) and 6-10 above, and observed as follows:

   The Tribunal is not satisfied that the applicant is suffering from an anxiety, stress or hypertensive condition which would prevent him from attending the hearing. The medical certificate does not give any details of the claimed condition affecting the applicant or of any medication prescribed to the applicant. Further, the certificate only addressed the issue of whether the applicant was fit for “duty”. Being unfit for duty and being unfit for a Tribunal hearing, while not mutually exclusive, are materially different issues. The Tribunal has also had regard to the context in which the medical certificate was provided, namely the day after a response to hearing invitation was received indicating that he would be attending the hearing followed by a change of representative on the day before the hearing. The Tribunal was also advised by Mr Edwards that the applicant would be attending the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.[34]

   [32] CB 176-179.

   [33] CB 177-178 at para.4.

   [34] CB 178 at para.5.

2. In its consideration of the applicant’s claims and evidence the Tribunal:

   a)set out the relevant legal requirements, namely:

   i)that at the time the Temporary Partner Visa application was made, and at the time of the Tribunal Decision, cll.820.211 and 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth)[35] required that the applicant be the spouse or defacto partner of an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen, and in relation to that that the applicant claimed to be the spouse of the sponsor who was an Australian citizen;[36] and

   ii)the definition of “spouse” in s.5F of the Migration Act providing that a person is the spouse of another where the two persons are in a married relationship, and a married relationship for those purposes is one that is valid for the purposes of the Migration Act, and under which there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, with the relationship being genuine and continuing, and the couple living together or not living separately and apart on a permanent basis,[37] and that in forming an opinion on those matters regard had to be had to all of the circumstances of the relationship, including those matters set out in reg.1.15A(3) of the Migration Regulations in relation to evidence of the financial and social aspects of the relationship and the nature of the parties household and their commitment to each other;

   b)considered whether the applicant and Ms Jerome were validly married, and on the basis of a marriage certificate indicating that the applicant and Ms Jerome were married at Runaway Bay in Queensland on 31 July 2011 concluded that the parties were married to each other under a marriage that was valid for the purposes of the Migration Act;[38]

   c)observed that it had no evidence before it as to the relationship between the applicant and Ms Jerome subsequent to the Delegate’s Decision on 16 October 2012, and no evidence relating to the various factors set out in reg.1.15A(3) of the Migration Regulations;

   d)observed that the application was made onshore and lodged with the Tribunal on 6 November 2012 and that the applicant had had over 14 months to provide evidence in support of the application, and that evidence ought to have been readily available in circumstances where the applicant claimed, at least at the time of the Partner Visa Application, to be residing in the same premises as Ms Jerome;[39] and

   e)was therefore unable to be satisfied that any spousal relationship continued as at the time of the Tribunal Decision and that the applicant did not therefore satisfy cl.822.221 of Schedule 2 to the Migration Regulations, and therefore did not satisfy the criteria for the grant of the Temporary Partner Visa.[40]

   [35] “Migration Regulations”.

   [36] CB 178 at para.7.

   [37] Migration Act, s.5F(2)(a)-(d).

   [38] Migration Act, s.5F(2)(a).

   [39] CB 179 at para.11.

   [40] CB 179 at paras.12-13.

3. In the above circumstances, the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a Temporary Partner Visa.[41]

   [41] CB 179 at para.14.

Application for judicial review

1. On 17 February 2014 the applicant applied to this Court for judicial review of the Tribunal Decision.

2. The applicant seeks the following orders:

   a)that the Tribunal Decision be quashed; and

   b)that the Tribunal Decision be reviewed and either another Tribunal hearing be convened or the Tribunal Decision be quashed and the applicant’s “visa [be] reinstated”.

3. The application does not set out any grounds of application, but refers to the applicant’s affidavit sworn 8 February 2014 which is attached to the application.[42] The Applicant’s Affidavit sets out the following two grounds stating that the Tribunal Decision is:

   2. …unfair and unjust by not granting me a hearing postponement and prejudiced my rights to a fair hearing with the Migration Review Tribunal.

   3. …unfair and unjust and the Migration Review Tribunal proceeded with a decision in my absence and without me being allowed to present my evidence of a valid visa application.

   [42] “Applicant’s Affidavit”.

4. On 19 March 2014 a Registrar of this Court ordered that the applicant file and serve, on or before 4 June 2014, an amended application giving particulars of the grounds of review and any further affidavit upon which the applicant intended to rely at the hearing. The applicant has not filed and served any amended application or any further affidavits.

5. When the matter was called for hearing in this Court on 28 July 2014 there was no appearance by the applicant. The matter was called outside the courtroom. The applicant still did not appear.

6. The Court is aware that the applicant wrote to the Minister’s solicitors, and copied ultimately to the presiding Judge’s chambers, a request for an extension of time as the applicant was not ready for the hearing on 28 July 2014, and that the Minister’s solicitors advised the applicant that if he wished to seek an adjournment he could apply to the Court at the commencement of the hearing. There being no appearance by the applicant no application for any adjournment was made, and in the absence of any oral adjournment application, or any written application supported by affidavit, it is unnecessary for the Court to further deal with that matter.

Applicant’s submissions

1. The applicant filed no written submissions, and due to his failure to appear at the hearing, made no oral submissions.

Ministers submissions

1. The Minister submitted that the application should be dismissed with costs because:

   a)the Tribunal Decision does not involve jurisdictional error, and this Court will only have jurisdiction in relation to the Tribunal Decision if it involves jurisdictional error;[43]

   b)a failure to grant an adjournment of a Tribunal hearing or to provide an applicant with additional time to provide further information, may in some limited circumstances amount to jurisdictional error, but the circumstances in this case are far removed from the circumstances in Minister for Immigration & Citizenship v Li & Anor,[44] where the High Court found that the Tribunal’s refusal to allow Ms Li further time to adduce further material from Trades Recognition Australia amounted, in all the circumstances of that case, to jurisdictional error;[45]

   c)in this case the applicant was aware that the central issue for consideration by the Tribunal was the genuineness of his relationship with Ms Jerome, and whether, at the time the Partner Visa Application was made, and at the time of the Tribunal Decision, the applicant was the spouse of Ms Jerome having regard to the criteria in cll.820.211(2)(a) and 820.221(2)(a) of Schedule 2 to the Migration Regulations and having regard to the definition of “spouse” in s.5F of the Migration Act, and the matters set out in reg.1.15A(3) of the Migration Regulations;

   d)between the time of making the application to the Tribunal on 6 November 2012 and the Tribunal hearing on 30 January 2014, the applicant did not provide to the Tribunal any written arguments or material demonstrating that his relationship with Ms Jerome was genuine and continuing as at the date of the Partner Visa Application, and that it was still genuine and continuing, notwithstanding the letters from the Tribunal inviting him to do so;[46]

   e)as the Tribunal correctly noted, the medical certificate provided by the applicant on 29 January 2014 only addressed the issue of whether the applicant was fit for “duty”, and not whether he was unfit for a Tribunal hearing;

   f)the Tribunal was also entitled to have regard to the context in which the medical certificate was provided as set out at paragraph 5 of the Tribunal Decision,[47] and that following advice by a Tribunal officer to the applicant’s new migration agent that the Tribunal had declined the applicant’s request for a postponement of the hearing, the new migration agent had advised the Tribunal officer that the applicant would be attending the Tribunal hearing;

   g)the applicant has not filed and served any evidence as to what evidence he would have put before the Tribunal if the Tribunal hearing had been adjourned, and what documentary material would have been provided to the Tribunal to demonstrate the genuineness and ongoing nature of his relationship with Ms Jerome, both at the time of the Partner Visa Application and at the time of the Tribunal Decision;

   h)the Court should conclude that the Tribunal Decision to affirm the decision not to grant the Temporary Partner Visa to the applicant did not involve any jurisdictional error; and

   i)even if the Court was to conclude that the Tribunal Decision involved jurisdictional error, there would not be any utility in the Court granting relief if it was the case that the applicant and Ms Jerome’s relationship is no longer genuine and ongoing, as the applicant could not meet the mandatory criterion in cl.820.221(2)(a) of Schedule 2 to the Migration Regulations. The applicant has not produced any evidence to the Court that the relationship between he and Ms Jerome is currently one that is genuine and ongoing.

   [43] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [44] (2013) 249 CLR 332; [2013] HCA 18 (“Li”).

   [45] Li CLR at 352 per French CJ, 369 per Hayne, Kiefel and Bell JJ, and 380 per Gageler J; HCA at para.31 per French CJ, para.85 per Hayne, Kiefel and Bell JJ, and para.124 per Gageler J.

   [46] See para.5 above.

   [47] CB 178 at para.5.

Consideration

1. The circumstances in which on 29 January 2014 the Tribunal refused to grant a postponement of the Tribunal hearing on 30 January 2014 were that:

   a)the Tribunal had written three times to the applicant in over two and a half months (since 7 November 2013) requesting written materials and documents to support the applicant’s argument before the Tribunal, but had received no such written materials or documents from the applicant;

   b)the Tribunal had put the applicant on notice more than two months previously (on 22 November 2013) of the 30 January 2014 Tribunal hearing date;

   c)the Tribunal had been advised on 28 January 2014 by the applicant’s then migration agent that the applicant would take part in the Tribunal hearing on 30 January 2014; and

   d)although the distinctions involved in the Tribunal’s reasonings were fine ones, the medical certificate provided by the applicant did not say that the applicant was unfit to attend the Tribunal hearing, but rather said that he was unfit for duty, and, in any event, the medical certificate was devoid of any meaningful or informative content to support its conclusion or which would warrant the Tribunal necessarily coming to a conclusion that the applicant was unfit to attend the Tribunal hearing.

2. In the above circumstances, the Tribunal made a decision to proceed with the Tribunal hearing on 30 January 2014, and to advise the applicant accordingly. That decision was not unreasonable or illogical or unjust in that it was within the bounds of what a reasonable Tribunal might do,[48] given:

   a)the untaken opportunity afforded to the applicant to provide written material and documents to the Tribunal in support of his case;

   b)the advice from the applicant’s then migration agent two days prior to the Tribunal hearing that the applicant would take part in the Tribunal hearing, and given the same day as the medical certificate was dated and the applicant was examined and said to be “unfit for duty”;

   c)the paucity of information contained in the medical certificate; and

   d)under s.353(1) of the Migration Act the Tribunal’s obligation in carrying out its function of providing a mechanism of review that is fair, just, economical, informal and quick. The Tribunal was entitled to operate in a less restrained way than, for example, a court might in the same circumstances, but especially so where the applicant had failed to provide any written material or documents in support of his case where those documents were documents which only the applicant could provide to the Tribunal.[49]

   [48] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 647-650 per Crennan and Bell JJ; [2010] HCA 16 at paras.130 and 135 per Crennan and Bell JJ.

   [49] Li CLR at 342-344 and 345 per French J and 358-359 per Hayne, Kiefel and Bell JJ; HCA at paras.12 and 16 per French J and para.52 per Hayne, Kiefel and Bell JJ.

3. In any event, and even if the failure to adjourn or postpone the Tribunal hearing might be characterised as unreasonable in the broadest sense or a denial of procedural fairness, those issues ceased to be operative factors when, at 4.36pm on the day prior to the Tribunal hearing (29 January 2014), the applicant’s new migration agent confirmed that the applicant would be attending the Tribunal hearing after the Tribunal had advised that the hearing would not be postponed, and when at 3.11am on the day of the Tribunal hearing (30 January 2014) the applicant’s new migration agent made arrangements to attend the Tribunal hearing by telephone, and gave the Tribunal his best telephone number for contact, and specifically referred to contact that he had had with the applicant, and in which the applicant had indicated that the applicant was “perturbed” about contact the Tribunal had had with his former migration agent, but did not say that the applicant would not or could not attend the Tribunal hearing later that day.[50] There was, in the circumstances, no practical injustice to the applicant in the Tribunal refusing to adjourn or postpone the Tribunal hearing.[51]

   [50] Mr Gerrard’s Affidavit, Annexure “ANG11”.

   [51] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ.

4. In circumstances where the applicant had indicated that he would attend the Tribunal hearing, the Tribunal was entitled under s.362B of the Migration Act to proceed in his absence. In all of the circumstances set out above, and for essentially the same reasons, it was neither unfair nor unjust, nor unreasonable nor a denial of procedural fairness, for the Tribunal hearing to proceed in the applicant’s absence. The applicant said he would attend the Tribunal hearing, as did his new migration agent, and the applicant failed to do so. The applicant had an opportunity to put evidence before the Tribunal, both before and at the Tribunal hearing, and also failed to do so. The applicant has also failed to put any evidence before this Court as to what evidence might have been put before the Tribunal hearing, and in particular, of the “various important documents” referred to in the applicant’s letter of 29 January 2014 to the Tribunal.[52] The applicant had multiple opportunities to put information before the Tribunal, an opportunity to attend the hearing, and an opportunity to put the documents which he described as “important” before this Court in the course of these proceedings (not to have the Court determine their merits but to endeavour to establish a jurisdictional error on the part of the Tribunal), but did nothing.

   [52] Mr Gerrard’s Affidavit, Annexure “ANG2”.

5. In all of the above circumstances, the applicant has not made out either of the grounds referred to in the Applicant’s Affidavit. Further, the applicant has not established any jurisdictional error, either in the circumstances referred to in the grounds of the application, or in the Tribunal Decision itself. In all of those circumstances the application must be dismissed.

Conclusion

1. It was for the above reasons that the Court ordered on 28 July 2014 that the application be dismissed and that the applicant pay the first respondent’s costs in the sum of $6646 by 28 August 2014.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 13 August 2014