SINGH v Minister for Immigration
[2019] FCCA 3557
•11 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3557 |
| Catchwords: MIGRATION – Partner visa – applicant late to court – application dismissed pursuant to rule 13.03C(1)(c) – reinstatement – explanation – sent to wrong court – no prejudice – whether sufficient arguable case – whether compelling reasons to waive Sch 3 criteria – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 |
| Applicant: | PARDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2727 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Ward |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to r 16.05 Federal Circuit Court Rules 2001 (Cth), the application for reinstatement of the proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2727 of 2016
| PARDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application dated 14 December 2016, the applicant sought judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 14 November 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Partner visa pursuant to s 65 of the Migration Act 1958 (Act).
Despite orders made on 21 June 2017, setting the application down for hearing and giving the applicant an opportunity to file any amended application and submissions, the applicant did not take those opportunities. He appeared before me self-represented.
The matter was listed for hearing at midday on 5 December 2019. At that time, there was no appearance by or on behalf of the applicant. The court delayed commencement of the hearing for a short time before an order was made pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), dismissing the application for nonappearance.
However, the applicant arrived at court at 12:15pm on that day.
In the circumstances, it seemed consistent with certain objects of the Act (albeit in quite different contexts),[1] that the parties would achieve a quick, economical, fair and just determination of the application if the court entertained an oral application for reinstatement.
[1] Act, s 353, 420, 473FA.
Nonetheless, somewhat remarkably, the application was opposed.
Where an applicant does not appear at a hearing, the court may dismiss the application: r 13.03C(1)(c). However, the court may set aside a judgment or order that was made in the absence of a party: r 16.05(2)(a).
In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection,[2] Mortimer J restated the settled principles,[3] in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
[2] [2016] FCA 1344, [4].
[3]See also MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1066, [18] (North J); AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110, [29]; MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530, [7] (Ryan J); BTR15 v Minister for Immigration and Citizenship[2016] FCA 892, [7] (Edelman J).
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing on judicial review.[4] On an application for reinstatement, the threshold which is applicable to consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’.[5] In CAL15, Mortimer J stated:[6]
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
[4] CAL15, [2016] FCA 1344, [5].
[5]CAL15, [2016] FCA 1344, [5] citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391, [62].
[6] CAL15, [2016] FCA 1344, [6].
When asked to explain the reason for his absence from court when the matter was called on, the applicant stated that he had in fact arrived at court at 11:45am and had been directed to attend a courtroom on level 8. Although a matter with a similar name was listed for hearing on that day, it was not listed at midday and was not listed for hearing on level 8.
The solicitor-advocate for the Minister accepted that no prejudice would be suffered by reason of the reinstatement of the application. I accept that submission, particularly in circumstances where the hearing commenced 15 minutes after its scheduled time.
The question is whether there a sufficiently arguable basis for review. In the circumstances, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and the application for review.
As appears below, the applicant has previously applied for different visas and those applications have been the subject of merits review on two occasions.
Background
The applicant, a male Indian citizen aged 36 years, first came to Australia on 6 June 2009. At that time, he was a dependent on his former wife’s Student visa, which lapsed on 7 October 2011.
The day beforehand, on 6 October 2011, the applicant lodged an application for a Temporary Skilled (Graduate) visa. His application was refused by a delegate of the Minister on 5 July 2012. The applicant applied for review of that decision to the then Migration Review Tribunal (MRT), which affirmed the delegate’s decision on 20 June 2013. The applicant’s bridging visa lapsed on 29 July 2013, and he remained in Australia unlawfully until 12 February 2014 when he was granted a Bridging visa.
The applicant applied for a Partner visa on the basis of his relationship with Kylie Marie Khaliq (sponsor). In his visa application, the applicant claimed to have met the sponsor in October 2012 at a shopping centre. The sponsor is an Australian citizen who has an adult daughter from a previous relationship. On 12 October 2013, the applicant and sponsor married. Following the grant of his Bridging visa, on 19 February 2014, the applicant lodged the application the subject of this proceeding.
Delegate’s decision
On 19 September 2014, a delegate of the Minister refused to grant the Partner visa application on the basis that the applicant did not satisfy cl 820.211(2)(d)(ii) of Sch 2 of the Migration Regulations1994 (Cth) (Regulations). The delegate found that the applicant did not meet Criterion 3001 of Schedule 3 of the Regulations. The basis for this decision was that the applicant’s Partner visa application lodged on 19 February 2014 had been lodged more than 28 days after the expiry of his last substantive visa (which ceased on 7 October 2011).
The delegate noted that the applicant had not responded to the Department’s request for any information regarding compelling factors to consider, and therefore found that there were no compelling circumstances to waive the Schedule 3 requirements.
Tribunal’s decision #1
On 7 October 2014, the applicant applied to the MRT for a review of the delegate’s decision.
On 22 September 2015, the Tribunal affirmed the delegate’s decision.
On 11 May 2016, orders were made in this court, by consent, remitting the matter to the Tribunal for reconsideration. This order was made on the basis of the decision in Waensila v Minister for Immigration and Border Protection.[7]
[7] [2016] FCAFC 32.
By letter dated 27 May 2016, the Tribunal requested that the applicant provide any further submissions or evidence about his circumstances (including after the time he had applied for a visa).
On 30 June 2016, the Tribunal invited the applicant to attend a hearing at 10.00am on 26 July 2016 to give evidence and present arguments relating to the issues arising on the decision under review.
Two hours after the scheduled hearing time, by email sent at 12.52pm on 26 July 2016, the applicant explained that he did not appear at the hearing because of “delays on the train line” and requested a further hearing be scheduled.
Tribunal decision #2
The applicant appeared before the Tribunal at a rescheduled hearing on 4 August 2016, doing so with the assistance of a Punjabi interpreter. Further, by letter dated 23 September 2016, the applicant was invited to appear before a reconstituted Tribunal on 14 November 2016. The applicant attended the hearing on that day with the assistance of a Punjabi interpreter.
On 16 November 2016, the reconstituted Tribunal notified the applicant of its decision to affirm the delegate’s decision not to grant the applicant a Partner visa, providing a written statement of its reasons (Reasons).
Before considering his claims and evidence, the Tribunal briefly outlined the applicant’s immigration history in Australia: [2]-[14].
The Tribunal noted that the applicant told it that he was no longer in a relationship with the sponsor and that she was in the process of seeking a divorce after they separated in June 2016: [16].
The Tribunal then identified three issues regarding the application:
a)whether there were compelling reasons not to apply the Schedule 3 criteria;
b)whether the applicant and sponsor were in a spousal relationship at the time of the visa application; and
c)whether they continued to be in a spousal relationship, and if not, whether any exemptions applied: [17].
As the applicant could not satisfy the requirements of Criterion 3001 (since he did not have a substantive visa at the time of his application for a Partner visa), the Tribunal next considered whether there were compelling reasons for not applying the criteria in Schedule 3.
The Tribunal noted that any compelling circumstances were required to be “sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”: [24].
The Tribunal had regard to the applicant’s conduct under a recently updated PAM3, noting they were not intended to facilitate compelling circumstances where a person had failed to comply with their visa conditions and deliberately manipulated their circumstances: [25]-[27].
The Tribunal also had regard to Waensila v Minister for Immigration and Border Protection,[8] which provided for circumstances occurring after the time of the visa application to be taken into consideration when deciding whether there were compelling reasons to waive the Sch 3 criteria requirements. The Tribunal recognised that this was of relevance to the applicant as he was no longer in a spousal relationship with the sponsor after making his application: [28].
[8] [2016] FCAFC 32.
The Tribunal did not accept that the relationship between the applicant and sponsor was in itself a compelling reason to waive the criteria: [30]. Although they were married, the applicant and sponsor’s relationship did not produce any children and the applicant had not provided any reliable evidence of any health or caring circumstance that would have required him to remain in Australia permanently: [31].
The Tribunal noted that the applicant had claimed his sister was dependent upon him to cook and drive for her. However, the applicant did not provide any additional independent evidence of his sister’s care arrangements and told the Tribunal that she had a husband who cared for her as well. The Tribunal found that the care provided by the applicant for his sister was not a compelling reason for waiving the criteria: [32]-[34].
The Tribunal then considered what the applicant said was the main reason for remaining in Australia illegally after his last substantive visa lapsed. The applicant had claimed that there were some family difficulties in India between his father and uncle regarding property, and that he did not want to go back to his home village: [35].
The Tribunal also referred to the applicant’s evidence regarding his new relationship. The applicant claimed his new partner was two months’ pregnant, however no independent evidence of this was provided and she had not appeared before the Tribunal to verify the applicant’s claim. As there was no corroborating evidence, the Tribunal did not accept that the applicant was in a new relationship, that his partner was pregnant or that his claims were sufficiently compelling to justify waiving the criteria: [36].
In concluding that there were not any compelling reasons to waive the Sch 3 criteria, the Tribunal stated that it had considered all of the written and oral evidence provided by the applicant. It also noted that: the applicant had been in Australia since 2009 with his then partner (who he had divorced); he made the application the subject of these proceedings with another partner (who he was in the process of divorcing); he had a new partner (who he claimed was pregnant), and; that he had remained an unlawful non-citizen for a period of time without providing a satisfactory or plausible explanation. The Tribunal had regard to the matters for consideration in PAM3 and found that, after examining the applicant’s circumstances cumulatively, there were no compelling circumstances to waive the Sch 3 criteria. The Tribunal found that the applicant did not satisfy cl 820.211(2)(d) of the Regulations and affirmed the delegate’s decision not to grant him a visa: [37]-[41].
Procedural history
On 14 December 2016, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review. In his application for judicial review, the applicant requested an extension of time to file; however, the application was submitted within the 35 day time limit and no extension of time was required.
By a Response filed on 23 December 2016, the Minister opposed the application on the stated basis that it did not provide any particulars or any legal ground of review, and that it did not establish any jurisdictional error of the Tribunal’s decision.
As noted above, on 21 June 2017, orders were made, by consent, listing the matter for final hearing.
As the applicant did not take the opportunity to file submissions, the Minister’s submissions were responsive to the grounds in the application.
Applicable principles
If the Tribunal’s decision was a privative clause decision[9], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[10] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[11] Whether it should do so is a separate issue.
[9] Act, s 474(2).
[10]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[11] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[12] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[12]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[13]
[13]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration – failure to consider claims
The two grounds of review contained in the application for review read:
The member did not consider my circumstances fully and the decision is affected by administrative errors.
The member has acknowledged the issues and circumstances affecting my situation, but failed to consider them at the time of making decision.
Those grounds were not informed by particulars and may be considered together.
The complaints in the applicant’s grounds of review do not contain sufficient particularity in order to make them meaningful and do not identify any jurisdictional error in the Tribunal’s decision.
Contrary to the grounds of the application, I consider that the Tribunal considered all of the applicant’s circumstances with respect to whether any compelling reasons existed for the grant of the visa. The applicant had variously: conceded that the relationship between himself and his sponsor had ceased; conceded that his sister did not require his assistance, and; failed to provide any sufficient evidence to substantiate his claims regarding his new partner being pregnant. In these circumstances, I accept that the Tribunal properly considered all of the applicant’s claims and the circumstances underlying those claims. The Tribunal’s decision that there were no compelling reasons to waive the Sch 3 criteria was open to it on the material before it.
The Tribunal complied with its procedural fairness obligations under Pt, Div 5 of the Act. The Tribunal invited the applicant to a hearing in accordance with ss 360 and 360A of the Act. It agreed to reschedule the hearing when the applicant failed to attend a hearing on 26 July 2016. The applicant was subsequently invited to, and attended, a further hearing on 4 August 2016. The applicant was invited to a further hearing before a reconstituted Tribunal by invitation dated 23 September 2016 and attended a further hearing on 14 November 2016. The Tribunal discussed the applicant’s claims and evidence with him at the hearing. Further, the applicant was on notice that the determinative issue on the review was whether he met the Sch 3 criteria and, if not, whether there were compelling reasons to waive them. That he knew of those issues was evident from his having provided the Tribunal with a copy of the delegate’s decision.[14] The applicant was also on notice of this issue from the Tribunal’s invitation to hearing letter dated 23 September 2016.
[14]SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152, [33]-[35]
No obligations to provide information to the applicant arose under s 359A of the Act. All of the evidence considered by the Tribunal was contained within the delegate’s decision and had been provided by the applicant to the previously constituted,[15] or the current, Tribunal.[16]
[15]The Minister cited SZJBE v Minister for Immigration and Citizenship [2007] FCA 190, [16]-[17] (Emmet J); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291.
[16] Act, ss 359A(4)(b) and s 359A(4)(ba).
Before me, the applicant stated that he had been in a relationship with his sponsor for 4 ½ years and that she had applied for the visa on his behalf. He stated that the relationship was going very well, was not a fake marriage and that their lives together were very good. However, after the Department had rejected his application, his sponsor had told the applicant that there was nothing further they could do and that they should separate. The applicant stated that the parties subsequently separated, and he has been accepting of this. He stated that he and the sponsor remain good friends.
The applicant also stated that he has been in Australia for 10 ½ years and has “a great life”. He says he now has two children.
I accept the Minister’s oral submission that, to the extent the applicant complains of the decisions of the delegate, those are decisions in respect of which this court has no jurisdiction. As concerns the complaint of a failure by the Tribunal to consider his claims, I reject that submission. It is clear that the Tribunal gave proper consideration to the evidence and submissions that were put before it. The grounds of review are rejected.
Conclusion
For the reasons set out above, I am not satisfied that the applicant has demonstrated in the material that there is an arguable basis for judicial review of the Tribunal’s decision or that it is otherwise appropriate for the court to hear full argument in the matter. Moreover, in the exercise of the residual discretion which is conferred in respect to the determination of an application for reinstatement, I am not satisfied that any basis is shown why this application should be permitted to go forward. The application for reinstatement should be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 11 December 2019
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