Singh v Minister for Immigration

[2014] FCCA 2272

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION [2014] FCCA 2272

Catchwords:  
MIGRATION – Application for judicial review of decision of MRT – application for spouse visa – applicant found to have failed to satisfy criterion attaching to visa – namely proof of shared finances – applicant failed to attend invitation interview with MRT – applicant failed to attend hearing before the court – Minister seeks dismissal of application on basis of non-appearance – no jurisdiction error established – application dismissed – costs.

Legislation:  

Migration Act 1958 (Cth), ss.360; 360A
Federal Circuit Court Rules:  r:13.03C(1)(c) ; 16.05(2)(a)

Applicant: KULWANT SINGH

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: ADG 298 of 2013

Judgment of: Judge Brown

Hearing date: 23 June 2014

Date of Last Submission: 23 June 2014

Delivered at: Adelaide

Delivered on: 23 June 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondent: Ms Deegan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Applicant pay the costs of the First Respondent fixed at $6,646.00.

2. The application is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 298 of 2013

KULWANT SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. The matter of Singh v Minister for Immigration and Border Protection is listed for hearing today.  The applicant commenced proceedings in this court on 17 October 2013 seeking that a decision of the Migration Review Tribunal made on 17 September 2013 be quashed. 

2. In support of his application, he has provided the following ground: 

   I wish to pursue my case because MRT has refused my application on the grounds that I am not living with my spouse and we are not in a relationship, but this is not true because we live together and have a good relationship with each other.  Therefore, I request the court to please look into my case.

3. The application was listed for directions on 8 November 2013 at 9.15am.  The applicant did not appear before the court at the directions hearing.  On that occasion, the proceedings were listed for hearing today, 23 June 2014 at 10.15 in the morning. 

4. As far as I can ascertain, a copy of that order was sent to the applicant at the address disclosed on his application, which was an address in Hackney in suburban Adelaide. 

5. Since that date, the applicant has prepared no further documents and in particular he has not filed any submissions or case outline as he was directed to do by the registrar on 8 November 2013. 

6. On 23 April 2014, the applicant filed a notice of change of address for service.  He has provided an address at Prospect, again in suburban Adelaide.  Precisely when he changed his address from Hackney to Prospect and whether there have been any intervening premises is unknown to me. 

7. Originally, this matter was assigned to the docket of Judge Lindsay.  He has recently resigned his commission with the Federal Circuit Court.  As a consequence of Judge Lindsay’s resignation, the application has been assigned to me. 

8. As a result of that on 7 May 2014, the court wrote to Mr Singh at his Prospect address and informed him that the matter had been referred to my docket but that the hearing date of 23 June 2014 at 10.15 remained the same. 

9. The letter further indicated that the case would be heard in courtroom 6 at the Commonwealth Law Courts, which is where I am currently delivering these oral reasons for judgment.  It is now 10.55am on 23 June.  Mr Singh has not appeared. 

10. A question arises as to whether it is fair to Mr Singh to proceed with the application in his absence.  Earlier this morning, I stood the matter down for two reasons.  Firstly, to allow the applicant more time to come to court if he was running late and, secondly, to enable counsel for the Minister, Ms Deegan, to contact her client to see what the Minister wished to do about the nonappearance of the applicant. 

11. Ms Deegan on behalf of her client has prepared lengthy submissions.  The thrust of those submissions is that a proper and fair reading of the decision of the MRT discloses no jurisdictional error and, accordingly, there is no basis on which this court can interfere with the decision of the tribunal.  The decision which has been made by the tribunal is what is known as a privative clause decision.  That means it is not amenable to review, unless some jurisdictional error can be discerned. 

12. Ms Deegan was concerned that her submissions had been sent to the Hackney address and therefore it might be unfair to Mr Singh to proceed with the application in his absence. 

13. I had indicated to her that there was some evidence on the court file that Mr Singh had been comparatively recently advised – the letter, as I say, is dated 7 May 2014 and has not been returned – that the hearing was anticipated to go ahead today.  Her instructions are that her client wishes the matter to proceed and be dismissed because the applicant has failed to appear to prosecute his application. 

14. In this case, the record available to me indicates that Mr Singh did not appear before the MRT. In all the circumstances, I have come to the conclusion that it would not be inappropriate for me to deal with the application in Mr Singh’s absence. I have that authority pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules.

15. The discretion provided by the rule must be exercised judicially.  As such it entails an assessment of the nature of the application before the court, of which dismissal is sought and the reason provided, if any, as to why the applicant in question has failed to appear.

16. In reaching this decision, I bear in mind that Mr Singh has an entitlement under rule 16.05(2)(a) of the Federal Circuit Court Rules to apply to have the dismissal of his application set aside if he is able to satisfy the court that he has a reason for not appearing today. 

17. The applicant is a citizen of India.  He arrived in this country in June 2008 on a student visa.  He was born in India on 30 April 1985.  The proceedings are concerned with a decision of a delegate of the Minister to refuse to grant Mr Singh a partner (temporary) (class UK subclass 820) visa.  The applicant applied for that visa on 12 May 2011. 

18. The criteria for the visa in question are set out in subclass 820.1 to 820.7 of schedule 2 of the Migration Regulations 1994. An applicant is required to be sponsored by a person who is his spouse. The term “spouse” is defined in section 5F of the Act which provides a number of criteria to be satisfied.

19. Essentially, a decision-maker must be satisfied that the parties in question are in a married relationship that is valid and that encompasses a mutual commitment to a shared life that is – and that that relationship is a genuine and continuing one. 

20. Regulation 1.15A of the Regulations provides further matters by way of elaboration.  Those further criteria concerns such matter as the joint ownership of property, the nature of the household between the parties concerned, including the care of children, social aspects of the relationship and the level of commitment that the parties have demonstrated to one another. 

21. After the refusal of the delegate to grant a visa as sought by the applicant, he applied for a review of the decision to the Migration Review Tribunal, the MRT.  The applicant, as I have already indicated, did not attend that hearing.  However, I am satisfied that he was provided with an invitation to the hearing on 24 July 2013, the hearing being scheduled for 22 August that year. 

22. He was invited to provide evidence of any joint finances between him and his sponsor, Ms Welford, evidence of any joint financial arrangements that they had, updated evidence about their relationship and any document or written submissions which were relevant. 

23. The hearing before the MRT proceeded on 12 September. It is Ms Deegan’s submission that the MRT in delivering its invitation to Mr Singh has complied with the provisions of section 360 and 360A of the Migration Act.

24. In any event, it is her further submission that the hearing before the MRT was a reasoned and fair one and which has led to a reasoned and rational decision, which discloses no jurisdictional error amenable to review in this court.  In the decision, the tribunal found that Mr Singh and Ms Welford were validly married.  However, the tribunal found that they did not have joint assets or that they had pooled their financial resources.

25. The tribunal was uncertain about the nature of the household which the parties shared, if any at all, and it found that there was inadequate evidence to find that the parties were mutually committed to one another.  The tribunal further was dubious about evidence provided regarding the social aspects of the relationship between the parties.

26. It is the Minister’s contention that the applicant has provided no grounds of jurisdictional error but has, rather, made an inchoate plea for a merits review of the decision.  The law is clear that this court is prohibited from embarking upon such a merits review of the decision.

27. My authority to remit a matter for rehearing before a freshly constituted tribunal is limited to circumstances where there is an error of law.  That is a complex concept to explain to a lay person, but essentially it means that the applicant was not provided with the hearing which he was entitled to have.  It goes to the fairness of the hearing process, not the decision itself.  I am required to leave findings of fact to the tribunal. 

28. In this case, the tribunal, as it was required to do, made findings about the nature of the relationship between the applicant and Ms Welford.  It found it did not satisfy the statutorily based criteria that it was a marriage.  In my view, it clearly discharged its jurisdictional obligations.

29. Other legal or jurisdictional errors can arise when the decision-maker concerned has either considered a matter which he is not required to consider or has failed to consider a salient jurisdictional issue.  Jurisdictional error can also arise where there is a denial of natural justice, particularly bias, either actual or sensible.

30. Finally, a decision, if it is irrational to such a degree that it offends the jurisdiction granted to the decision-maker can also represent a jurisdictional error.  In this case, I can find no error and in all the circumstances of the case I will deal with the matter in the way in which I proposed initially, that is, the application is dismissed.

31. The applicant has provided no explanation for his non-attendance before the court.  In my assessment, his application discloses no proper basis for review.  It must follow that it should be dismissed.

32. There is an application for costs I take it, Ms Deegan, and the sum sought is still $6,646.00.  Accordingly, I will dismiss the application and order that the applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  23 June 2014