Singh v Minister for Immigration

[2019] FCCA 3083

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3083

Catchwords:
MIGRATION – Visa – partner visa – ‘spouse’ – whether Tribunal failed to take into account evidence – request for merits review – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5

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

Cases cited:

Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57

Applicant: GURINDER SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 254 of 2017

Judgment of: Judge Heffernan

Hearing date: 1 October 2019

Date of Last Submission: 1 October 2019

Delivered at: Adelaide

Delivered on: 31 October 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr S Cummings for Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 254 of 2017

GURINDER 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 judicial review filed on 27 June 2017 with respect to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 June 2017.  That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (class UK) visa (‘the visa’).  On 4 August 2017, a Registrar of this Court gave the applicant leave to file and serve any amended application and such further material, including transcripts of the proceedings, before the Tribunal that he may seek to rely upon by 29 September 2017.  He was also ordered to file and serve a written outline of submissions 10 business days prior to the hearing.  The applicant has not filed any further materials or a written outline of submissions.

2. The application raises one ground in narrative form as follows:

   “I lodged my visa application for a UK Partner (Temporary) and BS Partner (Residence) visa on 26/6/2014 and my spouse Evon Walker sponsored my application.

   22 July 2016, Department of Immigration and Border Protection, refused my application for a Partner (Temporary) (Class UK) visa as I did not meet the criteria for this visa class.

   Later on I applied to AAT for the review of the decision but AAT also refused 1ny case.

   I hereby request the court to assess my case fron1 the beginning because the above stated authorities have not given true and due consideration to my evidences and claims

   As per the requirement of this visa class, I provided the following evidences for

   •the financial aspects of the relationship;

   •ANZ change of salary letter dated 28/5/2014.

   •Joint ANZ Bank Account addressed to 78 Valley Road, Hope valley SA 5090, dated 28/01/2015 -27/03/2015.

   •Joint ANZ Bank Account addressed to IA Judith Ave,

   •Joint ANZ Bank Account addressed to 29 Maria Street, Salisbury Downs SA 5108, dated as follows:-

   28/09/2015-27/1l/2015

   27/11/2015-28/01/2016

   28/01/2016-24/03/2016

   24/03/2016 -27/05/2016

   The nature of the household;

   •Statutory Declaration from Florence Towah

   •Joint Lease for la Judith Avenue, Holden Hill SA 5088, from 4/04/2015 - 24/09/2015

   •Joint Lease 29 Maria Street, Salisbury Downs S 5108, from 13/07/2015-12/07/2016

   •Joint Electricity Account addressed 29 Maria Street, Salisbury Downs S 5108, for usage 20/7/2015-20/10/2015.

   •Gas Bill in your nan1e addressed to la Judith Avenue, Holden Hill SA 5088, for usage between 14/4/2015-10/06/2015.

   The social aspects of the relationship; and

   •Photos

   •Form 888 Statutory declarations from two friends

   Our mutual commitment to each other.

   We have known each other since 20/02/2013 and were married on 31/3/2014.

   •Personal statements

   •Marriage certificate

   •Apart from that we have also been with each other through good and bad times, happy and sad moments. We have not made any long term plans yet but few things are in pipe line like kids education and buying a house.

   •I accept that we do get few arguments on days but this happens in every relationship and because that I strongly claim that my relationship with Evon should not be considered not genuine. We still love each other and after argu1nents we do get along and resolve our issues pretty quickly.

   In the light of above sated facts and evidences, I claim that my relationship with Evon is genuine and ongoing. And we are committed to each other for living together for years to come.

   Therefore I request the court, to consider my case for justice.”

   (re-produced verbatim)

3. The application was supported by the applicant’s affidavit sworn on 26 June 2017.  That affidavit simply repeats the ground of application, annexes a copy of the decision of the Tribunal, and adds nothing of substance.  The applicant represented himself in these proceedings.

Background and Tribunal decision

1. I will very briefly state the background to this matter. The applicant arrived in Australia in January 2009 on a student visa. He was granted a series of further visas. The last of those visas expired in June 2014. On 26 June 2014, he lodged an application for the subject visa on the basis of his relationship with his sponsor, Ms Evon Walker, (‘the sponsor’). The delegate refused the visa on 22 July 2016. This was on the basis that the applicant did not satisfy cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Briefly stated, the delegate did not believe that the applicant and the sponsor were in a genuine and continuing relationship as defined by s.5 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied within time for a merits review before the Tribunal.  He was invited to attend at a hearing scheduled for 17 May 2017.  The day before that hearing was scheduled, he wrote to the Tribunal requesting an adjournment on the basis that he was unwell.  A medical certificate supported that request, and the matter was adjourned to 7 June 2017.  When advised that his application for the adjournment had been successful, the applicant was informed that the Tribunal might want to take oral evidence from his sponsor and asked that he make efforts to ensure she attended on the adjourned date.

3. The applicant attended before the Tribunal on the adjourned date to give evidence and present his arguments.  The sponsor was not in attendance on that day.  The explanation given by the applicant for the sponsor not being in attendance was that when he informed her she was required to attend, she told him that she was “too busy and would not attend”.[1]  The Tribunal affirmed the decision of the delegate on the day of the hearing. 

   [1]     Court Book (‘CB’) pg 260 at paragraph 20).

Submissions

1. The applicant made the briefest of oral submissions before me.  He told the Court that all the documents he had submitted to the Tribunal were correct and that on that basis should have been given the visa. 

2. The first respondent’s oral submission was extremely brief and understandably so. It relied on its written outline of submissions. In short, the respondent submitted that the Tribunal correctly considered the circumstances of the relationship having regard to the four factors in reg.1.15A(3) of the Regulations as against the applicant’s oral and documentary evidence. Mr Cummings, for the first respondent, submitted that the findings of the Tribunal with respect to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the applicant and sponsor’s commitment to each other were thorough, and its conclusions were, at the very least, open to it. It was clear, the first respondent submitted, that all documents submitted to the Tribunal had been considered. This was, it was submitted, no more than an application for a merits review.

Consideration

1. I accept the submission of the first respondent that the application as filed is a request for an impermissible merits review.  Whilst the categories for judicial review are not artificially constrained, they do not extend so far as permitting the Court to undertake a merits review and make its own findings on the facts.[2]  As was explained to the applicant during the hearing, it is not the role of this Court to consider the evidence afresh and make its own decision on the basis of what it believes would have been the correct or preferable outcome. 

   [2]     Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57 at para [14]-[17].

2. I have considered the Decision Record of the Tribunal.  The defective nature of the ground of application would of itself be a proper basis to dismiss it, however given the applicant is unrepresented, I have proceeded on the basis that at its highest the applicant may be complaining that the Tribunal did not take into account a relevant consideration, namely, the documents that he had presented to it.  However, it is apparent from a fair reading of the Decision Record that the Tribunal considered the documentary evidence provided.  The reasons were in the circumstances comprehensive and show an active intellectual engagement with the applicant’s evidence and claims.  It is quite clear from the Decision Record that the Tribunal considered the oral evidence of the applicant.  It was obviously very concerned that the applicant had not been able to persuade the sponsor to attend at the proceeding.  That concern was one of the matters that had factored into its consideration of the nature of the relationship between the parties.  It was also concerned that the applicant had been unable to recall the names of one of the sponsor’s children and that he had stated that he was not even sure if he was the father of a child that had been born since he became married to the sponsor.  It was open to the Tribunal to consider and give weight to those matters. 

3. The Tribunal correctly stated and applied the criteria in cl.820.211(2)(a) of Schedule 2 to the Regulations. Further, it was correct in its understanding of the definition of married relationship in s.5F of the Act. The Tribunal’s statement of the Regulations and its understanding of how they were to be applied were unexceptionable. Its findings with respect to the factors in reg.1.15A(3) of the Regulations were clearly open to it. It concluded that the applicant had not satisfied it that he and the sponsor had a mutual commitment to a shared life to the exclusion of others or that their married relationship was a genuine and continuing one and that they did not live separately and apart on a permanent basis. It cannot be said that there was any error with that finding.

4. Whilst there was no complaint made in relation to it, the Tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Act and the applicant was clearly on notice from the delegate’s decision that the determinative issue on the review was whether or not he and the sponsor were in a married relationship as defined in s.5 of the Act and, hence, whether he could satisfy cl.820.211(2)(a) of Schedule 2 of the Regulations.

5. In reality, the applicant simply seeks a merits review of the Tribunal’s decision.  It is not within the jurisdiction of this Court to conduct such a review.  No jurisdictional error has been demonstrated, and, accordingly, I make the orders to be found at the beginning of these reasons. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 31 October 2019