SINGH v Minister for Immigration

[2019] FCCA 3587

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3587

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal had an active intellectual engagement with the applicant’s claims, evidence and submissions – whether the Tribunal’s decision was affected by bias – whether the Tribunal took into account irrelevant considerations – whether the Tribunal provided the applicant an opportunity to put on new information and submission – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), cl.820.211, sch.2, cl.3001, sch.3

Applicant: PARMINDER SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3514 of 2016

Judgment of: Judge Street

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Sydney

Delivered on: 10 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Morris
Clayton Utz

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The oral application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

DATE OF ORDER: 10 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3514 of 2016

PARMINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 November 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa (“Partner visa”).

2. The applicant is a citizen of India. On 19 September 2007, the applicant arrived in Australia on a Student (Subclass 573) visa. On 5 October 2007, the applicant was granted a further Student (Subclass 573) visa which ceased on 30 August 2011. The applicant then remained an unlawful non-citizen of Australia until being granted a bridging visa. The applicant subsequently again became an unlawful non-citizen until being granted a further bridging visa.

3. On 9 December 2014, the applicant applied for the Partner visa the subject of these proceedings.

4. On 31 August 2015, the Delegate found that the applicant failed to meet the criteria for the grant of a Partner visa.

5. On 18 September 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. On 14 December 2015, a differently constituted Tribunal affirmed the Delegate’s decision. On 6 May 2016, the differently constituted Tribunal’s decision was set aside by consent orders and the matter was remitted to the Tribunal for reconsideration.

6. By letter dated 22 September 2016, the Tribunal invited the applicant to attend a hearing on 16 November 2016. That letter identified that the Tribunal, having considered the material before it, was unable to make a favourable decision on this information alone. The applicant appeared at the hearing to give evidence and present arguments. The applicant also, through his migration agent, provided submissions which were expressly referred to in the Tribunal’s reasons.

7. The Tribunal in its reasons identified the background to the application for review. The Tribunal identified the applicant’s attendance at the hearing on 16 November 2016. The Tribunal summarised the applicant’s background. The Tribunal identified the relevant law, including in a paginated annexure attached to the Tribunal’s reasons. The Tribunal identified that the applicant did not have a substantive visa at the time of application.

8. The Tribunal found that the application for a Partner visa was not made within 28 days of the relevant day. Accordingly, the Tribunal found that the applicant did not satisfy cl.3001 of sch.3 of the Migration Regulations 1994 (Cth) (“the Regulations”) (“the Schedule 3 criteria”).

9. The Tribunal identified, pursuant to cl.820.211(2)(d) of sch.2 of the Regulations, that it had to determine whether there were compelling reasons not to apply the Schedule 3 criteria.

10. The Tribunal addressed the applicant’s reasons for not holding a substantive visa. The Tribunal was not satisfied that those reasons for not holding a substantive visa amounted to compelling reasons for not applying the Schedule 3 criteria.

11. The Tribunal referred to the applicant’s footy injury. The Tribunal found that the applicant’s foot injury was not a compelling reason for not applying the Schedule 3 criteria.

12. The Tribunal referred to the applicant’s fears of returning to India. The Tribunal also referred to the fact that the applicant has been in regular contact with his family once a week. The Tribunal found that the applicant’s fears of returning to India were not a compelling reason to waive the Schedule 3 criteria.

13. The Tribunal referred to the length of the relationship between the applicant and the sponsor. The Tribunal found that that was not a compelling reason not to apply the Schedule 3 criteria.

14. The Tribunal referred to the emotional impact of separation on the sponsor. The Tribunal accepted that the applicant and the sponsor have formed a close bond and provided one another with support and companionship. The Tribunal identified that this was a necessary criteria for any genuine relationship in respect of the Partner visa application. That Tribunal found that it was not a compelling reason not to apply the Schedule 3 criteria.

15. The Tribunal referred to the applicant’s ties to Australia. The Tribunal found that was not a compelling reason to waive the Schedule 3 criteria.

16. The Tribunal referred to the hardship it was alleged would be caused to the sponsor. The Tribunal referred to the sponsor’s study, the parties living together, that the sponsor had not been to India and it may be hard for the sponsor to find work and that the sponsor would not like to live in India. The Tribunal identified, correctly, that it was open to the sponsor to remain in Australia while the applicant is offshore. The Tribunal found that the alleged hardship to the sponsor was not a compelling reason not to apply the Schedule 3 criteria.

17. The Tribunal referred to considering the applicant’s circumstances separately and cumulatively. The Tribunal found that it was not satisfied that there were compelling reasons not to apply the Schedule 3 criteria.

18. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 12 December 2016.

2. On 6 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

3. On 7 February 2019, this Court fixed the matter for hearing.

4. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. The applicant identified that he had his sponsor with him at the bar table. The applicant requested that the Court permit the sponsor to address the Court. The Court declined that invitation, given that the sponsor is not a legal practitioner, but permitted the sponsor to remain at the bar table and identified that the sponsor could assist the applicant in relation to the submissions he put. That was the course that then followed in relation to the submissions that were put to the Court by the applicant.

6. From the bar table, the applicant identified the length of his relationship with the sponsor, the hardship that he may face if required to go back to India and the hardship to be faced by the sponsor.

7. The applicant’s submissions were, in substance, an invitation to this Court to engage in merits review. This Court has no power to review the merits, nor can the Court decide the matter on compassionate or discretionary grounds as the Court has no power to do so.

8. Nothing said by the applicant from the bar table identified any jurisdictional error.

9. In the course of submissions in reply, the applicant indicated that he wished to seek an adjournment of the proceeding in order to obtain representation. No earlier notice of the adjournment application was given to the first respondent.

10. The applicant suggested that he believed he had Legal Aid acting for him and/or that Clayton Utz were acting for him. There was no proper basis for any such contention. The applicant has had ample opportunity to obtain legal representation if he was able to do so.

11. The applicant also asserted that he was unfamiliar with the Court proceedings. That proposition is also inconsistent with the history of these proceedings and does not, in any event, identify any proper basis for the beliefs asserted by the applicant.

12. The applicant had earlier, unsuccessfully, sought to have the proceedings transferred to a different venue by email dated 27 November 2019. That request was not granted. That request made no reference to the need to obtain legal representation.

13. No proper basis was identified by the applicant to justify an adjournment. The Court was not satisfied that an adjournment was warranted in the interests of administration of justice. It is for these reasons that the adjournment application was refused.

Grounds in the Applicant

1. The grounds in the application are as follows:

   1. The Tribunal erred in making the final decision. The AAT adopted harsh approach to judge the application criteria.

   2. The tribunal made decision in hurry based in incomplete and unrelated information

   3. The tribunal did not provide sufficient opportunity to provide the required information

Ground 1

1. Ground 1, in substance, reflects a disagreement with the adverse findings by the Tribunal. The Tribunal’s reasons reflect an active intellectual engagement with the applicant’s claims, evidence and submissions. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal made adverse findings that were open to the Tribunal for the reasons given by the Tribunal. The applicant’s alleged error in the final decision is a disagreement with the adverse finding. It does not identify any jurisdictional error.

2. There is no evidence to support the contention that there was a harsh approach adopted by the Tribunal in relation to the Schedule 3 criteria. The adverse findings by the Tribunal are not reasons by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Further, the analysis of the applicant’s claims and evidence as well as what occurred at the hearing identified in the reasons of the Tribunal are consistent with the Tribunal approaching the review with an open mind reasonably capable of persuasion as to the merits. No case of bias or apprehended bias is made out.

3. No jurisdictional error, as alleged in ground 1, is made out.

Ground 2

1. In relation to ground 2, the letter dated 22 September 2016 sent by the Tribunal to the applicant identified to the applicant that there was insufficient material for the Tribunal to make a favourable decision and that the applicant had from 22 September 2016 until the hearing date on 16 November 2016 to provide further information and submissions. The applicant did so and those submissions are expressly referred to in the Tribunal’s reasons. There is no evidence of any request for a further opportunity to put on additional information. The applicant also had a migration representative.

2. The Tribunal’s decision was not delivered until 17 November 2016. There is no basis to find that the Tribunal’s decision was incomplete and no basis to find that the Tribunal’s decision was made other than with an open mind and with an active intellectual engagement with the applicant’s claims in evidence. No unrelated information has been identified in relation to ground 2. Ground 2 is, in reality, a disagreement with the merits.

3. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, as identified above, the applicant had an opportunity to provide further information and submissions as a result of a letter dated 22 September 2016 inviting the applicant to appear at the hearing on 16 November 2016. There is no evidence to identify any requests for a further opportunity by the applicant to put on required information. The applicant was on notice by the letter dated 22 September 2016 that the Tribunal was of the view that, on the current material, it was unable to make a favourable decision. There is no basis to find that the applicant had other than a proper opportunity to present the applicant’s claims and evidence to the Tribunal.

2. No jurisdictional error as alleged in ground 3 is made out.

3. Accordingly, as the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  27 February 2020