Singh v Minister for Immigration

[2014] FCCA 1210

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1210

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – where Tribunal confirmed decision of Minister’s delegate not to grant temporary partner visa – jurisdictional error – no particulars of jurisdictional error specified in application – Tribunal took evidence from applicant and sponsor and concluded that marriage between them was not genuine and continuing – finding made on assessment of credibility – Tribunal found no compelling reason to waive criteria applicable to granting of visa – findings of fact open to Tribunal – no jurisdictional error disclosed – application dismissed.

Legislation:

Commonwealth of Australia Constitution Act, s.75(v)

Migration Act 1958 (Cth), ss.5, 29, 65, 474, 476,

Migration Regulations 1994 (Cth), r.1.15A, Schedule 2, cl.820, Schedule 3

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Collector of Customs v Pozzolanic Enterprise Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24

Applicant: SUKHJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 61 of 2014

Judgment of: Judge Brown

Hearing date: 2 June 2014

Date of Last Submission: 2 June 2014

Delivered at: Adelaide

Delivered on: 26 June 2014

REPRESENTATION

Solicitors for the Applicant: Self-represented

Counsel for the Respondents: Mr D’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 24 February 2014 is dismissed.

2. The Applicant pay the First Respondent’s cost fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY-SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 61 of 2014

SUKHJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Sukhjinder Singh (“the applicant”) seeks to review a decision of the second respondent, the Migration Review Tribunal (“the MRT”), which confirmed an earlier decision of a delegate for the Minister for Immigration and Border Protection (“the Minister”) not to grant him a Partner (Temporary) (Class UK) visa pursuant to s.65 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is an Indian national, having been born in Delhi on 25 July 1987. He first entered Australia, pursuant to a student dependent visa, on 26 January 2009.  The primary visa holder was the applicant’s then wife.

3. The applicant and his first wife divorced on 23 March 2011, following a period of separation.  This situation led to departmental officers of the Department of Immigration and Citizenship[1] (“the Department”) advising the applicant that the Department was considering cancelling his visa as a consequence of the separation.  Mr Singh was invited to provide any relevant material, regarding his marital situation, to the Department prior to a decision being made in respect of the cancellation of his visa.

   [1] As it was then entitled,

4. Following this request and information provided by the applicant, the Department cancelled the applicant’s original visa.  This decision was subject to review process in a differently constituted MRT to the one concerned in the current proceedings.

5. Ultimately, the decision to cancel the applicant’s visa was confirmed by the MRT in question.  The consequence of this decision, in practical terms, is that the applicant has not held a “substantive visa” to remain in Australia since 9 November 2010.

6. The applicant married Linda Scheide, at Adelaide, on 4 May 2011.  The applicant met Ms Scheide in Adelaide on 24 November 2010.  On the basis of this marriage, the applicant applied for the partner visa in question on 11 May 2011.

7. It is a necessary condition of such an application that it be supported by a sponsor who is an Australian citizen.  The applicant’s sponsor is Ms Scheide.  There is no controversy that Ms Scheide is an Australian citizen.

8. At the time of the application, both Mr Singh and Ms Scheide provided a common address in Adelaide.  They indicated that they had become committed to marry one another in March of 2011.  They provided a joint statement, in support of the application, which set out their mutual plans and commitment to one another.

9. The criteria to be satisfied for the grant of the visa sought by Mr Singh are set out in Schedule 2, clause 820 of the Migration Regulations 1994 “the Regulations”. Clause 820.211(a) requires that at the time the relevant visa application is made the applicant concerned is the spouse of an Australian citizen.

10. The expression “spouse” is defined by section 5F of the Act. It is categorised by a valid marriage between the parties concerned; who have a mutual commitment to a shared life as husband and wife; and the relationship between them is genuine and continuing.

11. The definition is expanded upon by regulation 1.15A of the Regulations, which sets out the applicable considerations for determining whether a relationship between persons satisfies the definition of spouse provided by section 5F. These include the following:

    ·Joint ownership of major items of property;

    ·Pooling of financial resources;

    ·Whether one party owes any legal obligation to the other;

    ·Sharing of day to day household expenses;

    ·Living arrangements;

    ·Social aspects of the relationship;

    ·Duration of the relationship;

    ·Level of companionship.

12. Another criterion arises pursuant to Schedule 3 (3001), which requires application for the visa to be made within twenty eight days of the lapse or cancellation of a substantive visa. Importantly, clause 820.211(d)(ii) grants the Minister a discretion not to apply the relevant criteria if there are compelling reasons to do so.

13. This is the salient jurisdictional inquiry arising in this case.  Does the applicant satisfy the criteria attaching to the grant of this visa?  If not, are there compelling reasons to waive these criteria?

14. There is no controversy that the applicants student dependent visa was cancelled effective from 9 November 2010.  The application for the temporary partner visa was made on 11 May 2011.  Accordingly the application was made well over twenty eight days following the cancellation of the applicant’s student dependent visa.

15. The expression substantive visa is defined by reference to subsections 5 and 29 of the Act.  It means a visa granted by the Minister to enable its holder to either enter or remain in Australia.  Following the cancellation of his student dependent visa, the applicant was not entitled to remain in Australia.

16. On 24 May 2011, a delegate of the Minister determined that the applicant did not meet the criteria for the grant of a temporary partner visa.  In particular, the delegate found that there were no compelling reasons to justify the grant of such a visa.

17. As a consequence, the applicant applied for a review of this decision to the MRT.  The Tribunal held a hearing of the application on 10 February 2014, to which the applicant and Ms Scheide were invited to give evidence.  It also appears to be the case that the applicant’s sister, Ms Kuldeep Kaur, also gave evidence.

18. Following this hearing, the MRT affirmed the decision of the delegate not to grant Mr Singh a temporary partner visa.  It is this decision which is subject to review in these proceedings.

The grounds of review

1. The applicant filed his application to the Court on 24 February 2014.  In so doing, he utilised the pro forma document authorised by the Court’s Rules. This provides a tick box list of final orders potentially available to an applicant in proceedings under the Migration Act. The applicant has ticked the box against the heading: “An order that the decision of the Tribunal or Minister be quashed.”

2. Thereafter, the form provides room for an applicant to complete details under the heading grounds of application.  This portion of the document has been left blank.  Otherwise, on the form in question, the applicant has indicated that he requires a Punjabi interpreter.

3. Mr Singh filed an affidavit in support of his application.  To this affidavit is attached a copy of the relevant decision.  In his affidavit, Mr Singh has simply deposed that he wishes to review this decision. Accordingly, Mr Singh has provided no specific grounds to impugn the decision in question.

The Legal Framework to the Court’s decision

1. The decision not to grant the applicant the visa in question is a privative clause decision as defined by section 474 of the Act. This means that the decision is deemed to be final and can be vitiated only if the person affected by the decision can demonstrate a jurisdictional error on the part of the decision-maker concerned.

2. Jurisdictional error is a difficult concept to explain.  It does not entail a merits review or a re-hearing of the evidence arising in the decision concerned.  It is a concept which goes to the essential fairness of the hearing process itself, not the fairness of the decision concerned.

3. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[2]

   [2]  See Craig v South Australia (1995) 184 CLR 163

4. The hearing before me is not a merits review.  Rather it is a judicial review.  I must be careful not to confuse the two.  It is the function of this Court to determine whether the decision of the Tribunal was within its legal powers.

5. It is not the function to examine the merits of the decision.[3] Accordingly this hearing is not a rehearing of all the available evidence.  Rather the hearing is directed towards the legality of the Tribunal’s decision.

   [3]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

6. Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”.

7. Accordingly, the Court has jurisdiction to entertain Mr Singh’s application, but only so far as it discloses a jurisdictional error.  As was said succinctly by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tanker Pty Ltd,[4] in respect of the task of judicial review:

   “… the nature of the task of this court is clear.  It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”

   [4]  Collector of Customs v Pozzolanic Enterprise Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280

The hearing before the MRT

1. I have not been provided with any transcript of the proceedings before the MRT.  The only record available to me is the decision itself, which is a document of some 17 pages.  It presents as a reasoned and considered document, which was addressed to the relevant jurisdictional question, namely what was the nature of the spousal relationship between the applicant and Ms Scheide and whether compelling reasons existed, in the applicant’s case, to justify a waiver of the prescribed 28 day time frame for lodgement of the application in question.

2. The Tribunal accepted that the parties were validly married to one another at relevant times.  It otherwise doubted that they had a mutual commitment to having a shared life together.

3. The decision provides a summary of the evidence given by the applicant and his sponsor, neither of whom was found to be credible.  As McHugh J has remarked, findings on credibility are a function of a primary decision-maker “par excellence” and, as such, a decision-maker need not give detailed reasons as to why a particular witness was not believed.[5]

   [5] See Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67].

4. The Tribunal noted inconsistencies in respect of the living arrangements of the applicant and his sponsor.  It noted that these inconsistencies had been put to both the applicant and Ms Schiede, neither of whom had been able to give a credible explanation regarding those inconsistencies.  This led the Tribunal to find that the applicant and his sponsor had fabricated a claim that they were living together in a genuine relationship.

5. The Tribunal was not satisfied that the applicant and his sponsor shared day to day expenses or had a common ownership of property.  Neither was found to have any significant assets.  The applicant apparently acknowledged that he had operated a bank account in his own name. 

6. In this context, it was found that the applicant and Ms Scheide’s joint account had minimal funds in it and the account in question had not been opened for reasons which related to any genuine shared financial relationship between them. 

7. At relevant periods, the applicant was found to have been living in Alice Springs with members of his immediate family, whilst Ms Scheide was living in Whyalla in order to care for her mother.  The applicant had been able to obtain employment in Alice Springs.

8. As previously indicated, the Tribunal found that Mr Singh, Ms Scheide and other witnesses gave conflicting evidence in regards to the living circumstances of the applicant and his sponsor, and in particular attempted to minimise the amount of time they had lived apart.

9. The Tribunal further considered the evidence available to it regarding social aspects of the relationship between the applicant and Ms Scheide, including photographs provided of the two together.  It categorised many of the photographs as being “selfies” which did provide substantive evidence illustrative of the social aspects of the relationship between the parties.

10. The relevant decision also evinces considerable reservations about the level of mutual commitment between the applicant and Ms Scheide.  Ms Scheide is apparently not without difficulties in life, suffering a number of serious health complaints.  In this context the Tribunal noted that the applicant was unable to provide much understanding of these matters.

11. After assessing the evidence available to it under the various criteria provided by section 5F of the Act, and the relevant portions of the Regulations, the Tribunal found itself unable to be satisfied that the applicant and Ms Scheide were in a genuine and continuing relationship.

12. In my view this was clearly a finding of fact not a matter of law.  It was a finding clearly open to the Tribunal on the evidence available to it and discloses no error of law or misapplication of legal principle.

13. The Tribunal then turned to consider whether there were any compelling reasons of such moment to justify it exercising its discretion not to apply the relevant criteria to the applicant’s circumstances, particularly the time limit created by Schedule 3.

14. In this context, the Tribunal noted that the expression compelling reasons was not specifically defined in the relevant provisions.  In these circumstances, it turned to the relevant Explanatory Statement, introduced by the legislature at the time of the introduction of the rule concerned, which spoke of application for “strongly compassionate” reasons.

15. In assessing these circumstances, the Tribunal noted that the applicant and his sponsor had not been married for a significant period of time and had no children together. It was not accepted that Ms Scheide was dependent upon Mr Singh due to her medical condition. For these reasons the Tribunal found that there were no compelling reasons associated with the applicant’s circumstances to justify the waiver of the criteria stipulated in Schedule 3.

16. This was the basis on which the MRT affirmed the decision of the Minister’s delegate not to the grant the applicant a temporary partner visa.

Conclusions

1. In his application, Mr Singh has specified no grounds on the basis of which he asserts that the MRT fell into jurisdictional error.  In his oral submissions to the Court he simply contends that he wants a different result to that which fell from the Tribunal.  I can understand why that would be so.

2. However, as I am pains to point out to the applicant, the Court’s authority to intervene in the decision of the MRT is limited to circumstances where jurisdictional error can be demonstrated.

3. As Mason J pointed out in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, [6] “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review.  The same principle applies to a decision from the MRT.

   [6] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 48

4. In the absence of any elaboration of jurisdictional error by Mr Singh, his application must be dismissed.  It is also appropriate that he pay the Minister’s cost fixed by reference to the schedule attached to the Court’s Rules in the sum of $6,646.00.

5. For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date: 26 June 2014