Singh v Minister for Immigration

[2019] FCCA 3076

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3076

Catchwords:
MIGRATION – Visa – partner visa – whether Tribunal failed to consider relevant materials – ‘spouse’ – whether mutual commitment to shared life – procedural fairness – whether Tribunal in error to refuse adjournment – impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5F
Migration Regulations 1994 (Cth), cls.820.211(2) & 820.221

Cases cited:

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

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: PARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 385 of 2017

Judgment of: Judge Heffernan

Hearing date: 30 September 2019

Date of Last Submission: 30 September 2019

Delivered at: Adelaide

Delivered on: 29 October 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr T Ellison for the Australian Government Solicitors

ORDERS

1. The name of the first respondent is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant is to pay the costs of the first respondent fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 385 of 2017

PARDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a judicial review of a decision of the Administrative Appeals Tribunal (‘the AAT’) which affirmed an earlier decision of a delegate of the Minister refusing the applicant a Partner (Temporary) (Class UK)/Partner (Residence) (Class BS) visa (‘the visa’).  The AAT decision was made on 13 September 2017.

2. The applicant was self-represented at all stages of these proceedings.  He filed his application within time on 18 September 2017.  On 26 October 2017, a Registrar of this Court gave him leave to file and serve any amended application; further materials, including transcript of the proceedings; and other evidence, if he sought to do so, by 22 January 2018.  He was also ordered to file and serve an outline of submissions at least 10 business days prior to the hearing.  He has not filed any further materials in support of this application and did not file a written outline of submissions.

3. The ground of application is lengthy.  It reads as follows:

   “1.I, Pardeep Singh, request you to please consider my partner visa application for review as Department of Immigration and AAT had not considered any of the evidences provided in support of our relationship.

   2.I applied for partner visa subclass 820 and Partner (Migrant), Subclass 801, on 03/07/2015.

   3.I got in married relationship with my sponsor, an Australian citizen, Etta Girl PAWA, on 20 November 2014 in Adelaide.  We had a good couple of years together but following continued family issues our relationship broke down.

   4.I left the premises I was sharing with my partner in November or December 2016 because she did not want us to keep living together.

   5.However, I wished to continue the relationship.  I am trying since then to patch up as I believe that things can still work between the separation as ours is only temporary as she is bit angry and not mentally prepared.

   6.I visit my step son, Everret Flomo Pawa some times and from my prospective our relationship is not over yet.

   7.To give this relationship a chance and to avoid any family violence I moved out from our house.  There are many misunderstandings and we do get to the discussion how to rekindle the relationship.

   8.I have provided the following evidences to the department when we were living together.

   …”

4. After paragraph 8, the applicant sets out a long list of documents and materials which he claims were not considered by the AAT.  I will not list those documents here.  The ground of application continues:

   “33.After the exhausting try in front of AAT, I am hereby humbly, requesting the court to please consider my case and look the facts and truths, re-asses my case.  The court is the only hope left for me to prove my innocence and my dignity where the lower authorities have ignored the facts that we were together and there is still hope in our relationship.  We just need time and support to make this happen.

   34.I request the court to please provide justice and save my future.” (sic)

5. The ground does not specifically identify a basis of jurisdictional error, but on the basis of the application, allowing for the fact that the applicant is unrepresented, and based also on the oral submissions that he made before me today, it can be seen that he is complaining, firstly, in the written application, about a failure to consider relevant materials.  Secondly, in his oral submissions, he complained about a denial of procedural fairness because the AAT refused to adjourn the proceedings in order to let him make one further attempt to persuade his wife to attend at the AAT in order to give evidence.

6. I have concluded that the application should be dismissed.  What follows are my reasons for that conclusion.

Background

1. The applicant was born in India.  The application for this visa was made in July 2015.  It was made on the basis that he had married Ms Etta Pawa, who was his sponsor.  Ms Pawa is an Australian citizen.  The delegate refused the application on 7 September 2016 and declined to grant the visa.  The applicant then applied within time for a merits review of the delegate’s decision. 

2. The applicant was invited to attend a hearing to give evidence and present arguments.  In preparing his response to the hearing invitation, he indicated that he would take part in the hearing and, further, that he did not require the member to take oral evidence from any other person.[1] 

   [1]     Court Book (‘CB’) p 209.

3. The AAT conducted a hearing on 22 August 2017 at which the applicant appeared.  He gave evidence and he presented his arguments.  The sponsor, Ms Pawa, did not appear at the hearing.  On the applicant’s version of events, they had separated, but he considered that separation to be temporary.  The AAT affirmed the decision of the delegate.  At the applicant’s request, he was provided with a written statement of reasons on 13 September 2017.  The application to this Court was promptly lodged within time.

Legislative Scheme

1. In order to qualify for the visa sought, it was necessary for the applicant to meet the requirements of certain of the Migration Regulations 1994 (Cth) (‘the Regulations’). In particular, he had to satisfy cl.820.211(2) at the time of the application. It was also necessary for him to satisfy cl.820.221 at the time of the decision.

1. The time of application requirements were as follows:

   “(2)An applicant meets the requirements of this subclause if:

   (a)the applicant is the spouse or de facto partner of a person who:

   (i)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)     is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)the applicant is sponsored:

   (i)     if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

   (ii)     if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

   (A)has turned 18; and

   (B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d)in the case of an applicant who is not the holder of a substantive visa—either:

   (i)     the applicant:

   (A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)satisfies Schedule 3 criterion 3002; or

   (ii)     the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”

2. The time of decision requirements were as follows:

   “(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

   (a)continues to meet the requirements of the applicable subclause; or

   (b)meets the requirements of subclause (2) or (3).

   (2)An applicant meets the requirements of this subclause if the applicant:

   (a)would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

   (b)satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

   (c)has developed close business, cultural or personal ties in Australia.

   (3)An applicant meets the requirements of this subclause if:

   (a)the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (b)either or both of the following circumstances applies:

   (i)    either or both of the following:

   (A)the applicant;

   (B)a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner;

   (ii)     the applicant:

   (A)has custody or joint custody of, or access to; or

   (B)has a residence order or contact order made under the Family Law Act 1975 relating to;

   at least 1 child in respect of whom the sponsoring partner:

   (C)has been granted joint custody or access by a court; or

   (D)has a residence order or contact order made under the Family Law Act 1975; or

   (E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

   Note: For special provisions relating to family violence, see Division 1.5.

   (4)The sponsorship mentioned in paragraph 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force.”

3. The term ‘spouse’ is defined in the Migration Act 1958 (Cth) (‘the Act’) in s.5F. The definition is as follows:

   “(1)For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationshipif:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis.

(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.”

The Decision of the Tribunal

1. The Tribunal took evidence from the applicant, who told it that the relationship with the sponsor had broken down, that she had left the premises they shared together in late 2016 and no longer wanted to live with him.[2]  The applicant’s position was that he wanted to rekindle the relationship but that he was waiting for the right moment in order to do so.  He told the AAT that he believed his sponsor was angry and that she had refused his request to come to the Tribunal when he had made it of her only the day before. 

   [2] CB at p 234 at para [5].

2. The Tribunal member asked him whether his sponsor had ever said anything to him to make him consider that the separation was only a temporary one from her perspective.  The applicant’s response was that there were a lot of misunderstandings between the two of them and that she often says things that she does not really mean.  She had not told him that she did want to rekindle the relationship.[3]

   [3] CB, ibid at para [6].

3. In light of the evidence given by the applicant, the AAT explained to him that the basis of the decision reached by the delegate, namely, whether the applicant was the spouse of his sponsor at the time of the visa application, was no longer determinative.[4]  It was explained to the applicant that, by virtue of cl.820.221, it was necessary that he continue to be the spouse of his sponsor at the time of the decision.  As a result, it was necessary that the AAT be satisfied that there was a mutual commitment to a shared life to the exclusion of all others. 

   [4] Ibid.

4. The Tribunal member explained to the applicant that the evidence he had given about the separation led him to conclude that he could not be satisfied that the commitment to a shared life was mutual.  In explaining this, the Tribunal member pointed out that the separation had persisted for a period of eight months, and the sponsor had refused to assist the applicant by coming to the AAT hearing and giving evidence.[5]

   [5] CB pp 234 - 235 at para [7].

5. The applicant asked the AAT to adjourn the proceedings so that he could attempt to convince Ms Pawa to attend and give evidence of their relationship.  That application was initially suggested by the AAT.  However, the decision record shows that on further reflection, given the evidence of the applicant about the breakdown of the relationship, the circumstances were so inconsistent with the member being able to be positively satisfied that there was the relevant commitment to a shared life, that he concluded an adjournment would be futile in all the circumstances.[6]

   [6] CB p 235 at para [8].

6. The AAT reasoned that based on the circumstances at that time, it would be most unlikely for the sponsor to give evidence that would be capable of satisfying it that there was a mutual commitment to a shared life to the exclusion of all others.  It should be noted that the AAT attempted to contact Ms Pawa on the day of the hearing using a mobile telephone number that had been provided to it by the applicant.  It was unsuccessful. 

7. Noting that the Regulations are obliged to consider the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the person’s commitment to each other, the AAT did consider a series of documents provided to the department by the applicant addressing those factors. Whilst the AAT specifically noted that it took that evidence into account, it found that the evidence of the applicant as to the breakdown of the relationship was determinative in his circumstances. This was because the mutual commitment to a shared life was a time of decision requirement. For those reasons, it found that the applicant was not a spouse of the sponsor under the Act. Accordingly, he did not continue to meet the requirements with respect to cl.820.211(2) of Schedule 2 to the Regulations. For that reason, the AAT affirmed the decision under review.

Submissions

1. The applicant made brief oral submissions before me.  He did not address me on the failure of the AAT to take into account relevant materials, although I invited him to do so.  When asked how the AAT had fallen into error, he submitted that they had failed to adjourn the proceedings at his request.  When I suggested he was complaining about a denial of procedural fairness because on the basis of that refusal, he agreed.  His submission was that the Tribunal should give him one more chance as he had requested and that he did not understand how the proceedings worked.  He then reiterated the same point in slightly different terms and submitted that he believed he should get one more chance to improve his relationship with the sponsor.  He requested that I return the matter to the AAT. 

2. The first respondent submitted, firstly, that the written application amounts to no more than a request for an impermissible merits review.  In terms of the failure to grant the adjournment, the respondent submitted that there was clearly no utility in doing so given the applicant’s own evidence.  The relationship had clearly broken down and the decision not to adjourn was within the discretion of the AAT given the time of decision criterion.  It could not be said that the power to refuse an adjournment was exercised in an unreasonable manner. 

Consideration

1. I accept the submission of the first respondent that the written grounds as pleaded amount to a request for an impermissible merits review.  As I explained to the applicant during the hearing of this matter, it is not the role of this Court to determine whether he should be given a partner visa.  The process of judicial review is to consider whether or not that decision was made lawfully by the AAT.  It is well established that this Court cannot entertain an application which amounts to an invitation to revisit the facts and conduct a merits review.[7]  The comments of the Court in the decision of Nahi[8] are appropriate in this matter:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [7]     Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors (2011) 193 FCR 57 at paras [14] – [17].

   [8]     NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para [10].

2. To the extent that the written application makes a complaint about a failure to consider relevant material as itemised, the applicant has not established that a jurisdictional error was committed.  Firstly, the Tribunal specifically indicated that it considered the materials that had been provided to it.  Secondly, it is obvious that those materials were all directed to establishing that there had been between the applicant and his sponsor a mutual commitment to a shared life to the exclusion of all others, and that he was the spouse of the sponsor.  However, whatever the situation may have been in the past, the applicant gave evidence to the AAT that the relationship between him and the sponsor had broken down, that they had been living apart since December of 2016, and remained so at the date of the AAT’s decision.  Further, it was the applicant’s evidence that his wife had told him that she did not want to live with him, and this was amply demonstrated in her refusal to accept his invitation to support him before the AAT.  The conclusion reached by the AAT at the time of decision, that the applicant and the sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, was clearly open to it.[9]

   [9] Section 5F(2)(b).

1. No jurisdictional error has been demonstrated by the applicant.  Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  29 October 2019