Singh v Minister for Immigration
[2019] FCCA 2796
•3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2796 |
| Catchwords: MIGRATION – Judicial Review – decision of former Migration Review Tribunal – affirmation of decision to not grant a Partner Visa – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act, 1999 (Cth), s.75 |
| Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1 Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557 Bui v Minister for Immigration & Citizenship [2010] FCA 234 CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 Chan v Minister for Immigrations & Anor [2015] FCCA 47 Department of Immigration & Ethnic Affairs v Yad Ram (1996) 69 FCR 431; (1996) 23 AAR 134 Huai Xin Li v Minister for Immigration & Citizenship [2008] FCA 902 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Mallik v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1134 Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 Minister for Immigration & Citizenship v Pemberton [2010] FCA 430 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Dunne [1999] FCA 204; (1999) 94 FCR 72 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12 Minister of State for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALR 353 MZXFU v Minister for Immigration & Multicultural Affairs [2006] FCA 1593 MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 NABE v Minister for Immigration & Citizenship [2004] FCAFC 263; (2004) 144 FCR 1 Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FCA 211; (2005) 143 FCR 204 Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; (2012) 86 ALJR 1019; (2012) 290 ALR 616 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; (2003) 77 ALJR 1829;(2003) 201 ALR 327 Suleyman v Minister for Immigration & Multicultural Affairs [2000] FCA 610 Surinakova v Minister for Immigration, Local Government & Ethnic Affairs (1991) 33 FCR 87 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748 Zin Mon Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; (2010) 187 FCR 449 |
| Applicant: | ATINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 93 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 29 August and 5 December 2014 |
| Date of Last Submission: | 8 June 2016 |
| Delivered at: | Sydney (by video-link to Perth) |
| Delivered on: | 3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| For the Applicant: | The applicant appeared in person (29 August 2014) Mr JL Edwards (5 December 2014 and final written submissions) |
| Counsel for the First Respondent | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 93 of 2014
| ATINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Atinder Singh (“Mr Singh”), seeks judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Migration Review Tribunal, now Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the then Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”) not to grant a partner visa of Class UK (Subclass 820) and Class BS (Subclass 801)(“Partner Visa”) to Mr Singh.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. There was also a delay as a consequence of the delivery of the judgment of the Full Court of the Federal Court in Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32 (“Waensila”) which necessitated the filing of further submissions by the applicant and the Minister. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the application filed on 15 April 2014;
b)the affidavit of Mr Singh’s “partner” Ms Sem affirmed 11 April 2014 stating various matters of fact (“Ms Sem’s Affidavit”);
c)an affidavit affirmed by Mr Singh on17 April 2014 (“Mr Singh’s Affidavit”) in support of the Partner Visa application which, in addition to detailing factual background and personal circumstances, annexed:
i)a copy of the Tribunal Decision;
ii)a notice of intended marriage certificate;
iii)medical confirmation of the pregnancy of Ms Sem; and
iv)a letter from Mr Singh’s employer confirming he is employed under a contract which accorded with his visa requirements;
d)the affidavit of Faith Deana Choularton affirmed 2 December 2014 annexing a copy of the transcript of the hearing before the Tribunal (‘Tribunal Transcript”);
e)outlines of submissions filed by the applicant on 15 and 28 August and 31 October 2014 and 8 June 2016, and filed by the Minister on 22 August and 30 October 2014 and 12 May 2016;
f)the Court Book (“CB”) containing the materials relevant to Mr Singh’s Partner Visa application including the Delegate’s Decision, the Tribunal Decision and many of the materials that were before the Tribunal and Delegate for consideration in which appears the Tribunal Decision dated 6 March 2014: CB 367-379; and
g)a copy of the transcript of the hearing on 29 August 2014 (“Day 1 Transcript”) and on 5 December 2014 (“Day 2 Transcript”).
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment, are being delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background
The background to the application is as follows:
a)Mr Singh first arrived in Australia on a subclass 573 student visa on 8 November 2011 and on expiry of the student visa applied for a skilled graduate visa that was refused on 18 April 2012, a protection visa that was still on foot when he applied for the Partner Visa the subject of this application, the protection visa being refused on 10 June 2013, and he has since remained in Australia on various bridging visas: CB 193 and CB 240-241;
b)on 6 June 2013 Mr Singh made an onshore application for the Partner Visa sponsored by Ms Chanlyda Sem (“Ms Sem”) whom Mr Singh claimed that he met around early June 2011 and that they became engaged and moved in together in June 2012: CB 1-20 and CB 31-32:
c)on 4 July 2013 the Delegate refused to grant Mr Singh the Partner Visa as the Delegate was not satisfied Mr Singh met regs.1.09A and 2.03A of the Migration Regulations 1994 (Cth) (“Migration Regulations”) and therefore did not meet the requirements of cl.820.211(2)(a) of the Migration Regulations: CB 203 and 189-192;
d)on 25 July 2013 Mr Singh applied to the Tribunal for review of the Delegate’s Decision: CB 215-225;
e)Mr Singh was invited to appear before the Tribunal on 24 January 2014 and both he and Ms Sem attended at the Tribunal and gave evidence, together with two of Mr Singh’s friends and he also provided a “detailed response” to the Delegate’s Decision: CB 246-247, CB 259-334 and 336;
f)Mr Singh was given an opportunity to provide further submissions and evidence to demonstrate that there were compelling and compassionate circumstances for the grant of the Partner Visa pursuant to reg.2.03A of the Migration Regulations, despite the de facto relationship being less than 12 months duration, and compelling reasons to waive the Schedule 3 criteria 3001, 3003 and 3004 pursuant to cl.820.211(2)(d)(ii) of the Migration Regulations and he did so on 4 February 2014: CB 341-366; and
g)on 6 March 2014 the Tribunal affirmed the Delegate’s Decision not to grant Mr Singh a Partner Visa and the Tribunal advised Mr Singh of the Tribunal Decision by letter dated 13 March 2014: CB 367-380.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that the Delegate had refused to grant the Partner Visa as the Delegate was not satisfied that the relationship was genuine or that Mr Singh and Ms Sem were in a genuine relationship for the 12 months prior to lodging the Partner Visa application: CB 368 at [3];
b)stated that the material before it included the file of the Department of Immigration and Border Protection in relation to Mr Singh, the material referred to in the Delegate’s Decision and information it had sourced itself, a copy of the Delegate’s Decision, the materials Mr Singh provided prior to the Tribunal hearing and those he provided after the Tribunal hearing: CB 368 at [6];
c)found the only subclause relevant to Mr Singh’s circumstances was cl.820.211(2) of the Migration Regulations which requires that at the time of the Partner Visa application and the time of the decision that Mr Singh be the spouse or de-facto partner of an Australian permanent resident: CB 368-369 at [11]-[12]
d)discussed what s.5CB of the Migration Act defines as a “de facto partner” and what the Tribunal is required to consider in determining whether Mr Singh met that definition in the 12 months prior to the date of the Partner Visa application, at the time of the Partner Visa application and if he meets that definition at the time of the Tribunal Decision: CB 369 at [13]-[15]
e)referred to the evidence before it regarding the financial aspects of the relationship and that that evidence indicated that Mr Singh and Ms Sem did not jointly own any real estate or have any joint major assets or liabilities, however, Mr Singh and Ms Sem appeared to have opened a joint bank account in March 2013 and Mr Singh’s salary was paid into this account while he also provided a document indicating that Ms Sem was nominated as his beneficiary to superannuation entitlements and therefore was satisfied that the financial aspects of the relationship suggested the existence of a spousal relationship: CB 369-370 at [16]-[20];
f)was satisfied the nature of the household was indicative of a spousal relationship on the basis of the living arrangements and shared household duties: CB 370 at [21]-[22];
g)acknowledged the evidence of two friends that was provided in support of the Partner Visa application and found that the couple represented themselves as a couple and planned their social activities on this basis from the time they lodged the Partner Visa application and the social aspects of the relationship therefore suggested a spousal relationship: CB 371 at [23]-[29];
h)found that on the evidence of Mr Singh and Ms Sem provided at the Tribunal hearing, including that Ms Sem was pregnant with the couple’s first child, that the pair have a mutual commitment to the relationship and view the relationship as long term and continuing, and have done so since the time of lodging the Partner Visa application, and therefore the requirements of s.5CB(2) were met at the time of the application and Tribunal Decision and Mr Singh satisfies cll.820.211(2)(a) and 820.221 of the Migration Regulations;
i)considered whether Mr Singh also met the additional criteria set out in reg.2.03A of the Migration Regulations which are required to be satisfied for the purposes of a Partner Visa application by a person who claims to be in a de facto relationship, ad was satisfied Mr Singh and Ms Sem met reg.2.03A(2) of the Migration Regulations: CB 372 at [35];
j)referred to the following evidence to conclude that Mr Singh and Ms Sem did not commence living in a de facto relationship until October 2013, and therefore did not accept that they were living together in a de-facto relationship since 1 June 2012: CB 373 at [46]:
i)both Mr Singh and Ms Sem provided a statement that they moved in together in June 2012 and that Mr Singh has developed a close relationship with Ms Sem’s children from her previous marriage: CB 372 at [38];
ii)a statutory declaration of Sasil Kaura noting that the pair were his sub-tenants from 1 June 2012 until 9 April 2013: CB 372 at [39];
iii)the Delegate’s Decision making reference to Ms Sem and her children travelling overseas for a period of two months in December 2012 to February 2013, explained to be as Ms Sem’s grandfather had died and it was customary to return for 100 days following his death: CB 372 at [40];
iv)Centrelink documents dated 18 September 2013 indicating that Ms Sem was required to repay a parenting payment as she had indicated that she lived in a Wattle Grove address until 15 August 2012 and she moved into an Armadale address on 25 September 2012, in the meantime was living with her grandmother rent free and therefore was required to make repayments for that period with her grandmother. Mr Singh indicated that Ms Sem was too preoccupied to notify Centrelink of her address she had changed addresses notwithstanding she had been living with Mr Singh in Bentley since June 2012: CB 372 at [41];
v)Mr Singh indicating that culturally he did not wish to live with Ms Sem until they became engaged on 1 June 2012;
vi)various documents suggesting that Ms Sem’s mail was sent to the Bentley address, where the couple claimed they first lived together from June 2012, from November 2012, specifically Ms Sem did not advise Centrelink of this change until November 2012 although Ms Sem did advise Centrelink she was residing at the Bentley address on or about 2 October 2012: CB 373 at [42] and [44] and
vii)a lease agreement witnessed by Mr Singh and Ms Sem in October 2012 indicating that the lease is only for the two tenants that are signatories to the lease and Mr Singh stating he was a sub-tenant with Ms Sem and her two children therefore there were 4 people living in a 3 bedroom unit: CB 373 at [45];
k)did not accept the explanation that Ms Sem was too preoccupied to notify Centrelink of her address change as Ms Sem seemingly notified Centrelink of her change to her grandmother’s address during the period Mr Singh and Ms Sem claim that they were living together in a de facto relationship in Bentley, and though it was satisfied that the photographs provided of the engagement party held at the Bentley address indicates the couple were engaged, was not satisfied that that signalled the start of the de-facto relationship: CB 373 at [42]-[43];
l)gave little weight to the witness evidence and supporting statements that Mr Singh and Ms Sem were living in a de-facto relationship from 1 June 2012, placing “significant weight” on the Centrelink information, which supported the finding that the relationship commenced at some stage after 1 June 2012, however it did give some weight to the witness statements as evidence that Mr Singh and Ms Sem were in a relationship: CB 373 [43] and [45];
m)was not satisfied on the limited evidence provided that Mr Singh was a significant person in the life of Ms Sem’s children, and while accepting that Ms Sem was pregnant with the couple’s child, these were not compelling and compassionate reasons for granting the Partner Visa: CB 374 at [48];
n)addressed submissions that Mr Singh feared for his personal safety as terrorist groups have attacked his father and Mr Singh was forced to change his identity because of the threat to his family (rejecting Mr Singh had changed his identity), and noting that Mr Singh had made an application for a protection visa, and that the protection visa application was considered and refused, and that in any event the evidence does not indicate that his life is in danger and therefore this is not a compassionate or compelling reason to grant the Partner Visa: CB 374 at [49];
o)considered it incumbent on Mr Singh to have been aware of his immigration status at all times and any conditions attaching to any visa and therefore that his representative was “incompetent” was not a compassionate or compelling reason to grant the Partner Visa: CB 374 at [50];
p)was not satisfied that Mr Singh met the additional criteria prescribed in reg.2.03A(3) of the Migration Regulations: CB 374 at [51];
q)as Mr Singh did not satisfy Schedule 3 criterion 3001 of the Migration Regulations as the Partner Visa application was not lodged within 28 days of the date on which he held a substantive visa considered what was put forward as compelling reasons for waiving the criterion of sch.3 of the Migration Regulations, and referred to the law concerning the meaning of “compelling reasons” : CB 375-376 at [57]-[65];
r)when considering if there were “compelling reasons” not to apply the Migration Regulations sch.3 criterion:
i)again noted the onus was on Mr Singh to be aware of his immigration status, and that it was his migration agent who failed to lodge the Partner Visa application prior to his substantive visa expiring, but this was not a compelling reason to waive the criteria: CB 376 at [66];
ii)did not consider Mr Singh was in danger from terrorist groups as claimed, and did not accept that he changed his identity as a result: CB 376 at [67]; and
iii)accepted evidence in relation to Mr Singh’s claim that a compelling circumstance was Ms Sem’s pregnancy, but did not accept that as a compelling reason that existed at the time of application and therefore as a compelling reason to waive the Schedule 3 criteria: CB 367 at [68];
s)noted that Ms Sem indicated it would be difficult without Mr Singh and she would travel to India to be with Mr Singh when considering the effect on Ms Sem if the Partner Visa was denied: CB 376 at [69]; and
t)concluded that after considering all the evidence and submissions made it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria, and that accordingly Mr Singh did not meet cl.820.211(2)(d)(ii) of the Migration Regulations: CB 376 at [70].
Application
The grounds of the application ran to 38 paragraphs and took the form of submissions as opposed to grounds of review. When the matter first came on for hearing on 29 August 2014 Mr Singh was unrepresented, and as a result of various exchanges during that hearing the following orders were made:
1. The applicant and first respondent file and serve by 24 October 2014 further submissions concerning whether the second respondent, when considering compassionate and compelling circumstances under reg 2.03A(3)(b) of the Migration Regulations 1994 (Cth) and compelling reasons under cl.820.211(2)(d)(ii) of the Schedule 2 to the Migration Regulations 1994 (Cth), should have had regard to:
(a) whether or not the sponsor could relocate to India, with or without each of her three children, if the applicant was refused a visa;
(b) the best interests of each of the sponsor’s three children (including under any relevant and applicable international convention), and in particular their relationship with their mother (the sponsor) and their respective biological fathers, in the event that the mother:
(i) decided to relocate to India with her three children;
(ii) could not relocate to India with her eldest two children; or
(iii) decided to remain in Australia with her three children,
and any reply to the further submissions by the applicant and first respondent to be filed and served by 21 November 2014.
2. Under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) that the applicant be referred to a lawyer for legal assistance for assistance with the drafting of the further submissions and reply referred to in order 1 and representation at the further hearing of the matter in relation to the further submissions and reply.
3. The applicant and first respondent have leave to inspect in the Registry a copy of the transcript of proceedings that took place on 29 August 2014.
4. The matter be adjourned to 10.15am on 5 December 2014 for a further hearing on the further submissions and reply.
5. There be liberty to apply generally.
The Court adjourned the matter to enable the parties to make the appropriate submissions and responses to the issues the Court referred, and Mr Singh obtained the assistance of pro-bono Counsel who represented him at the resumed hearing on 5 December 2014. At the resumed hearing on 5 December 2014 Mr Singh was granted leave to rely upon two further grounds (“Additional Ground 1”, “Additional Ground 2” respectively).
During the time judgment was reserved the Full Court of the Federal Court delivered reasons in Waensila and orders were made by consent allowing further submissions to be filed in respect of the judgment in Waensilia, and its treatment of cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations.
At hearing the Court read into evidence without objection the Tribunal Transcript. There was no indication by Mr Singh at the hearing on 29 August 2014 he wished to rely upon his affidavit or Ms Sem’s, this is not surprising given Mr Singh was unrepresented and unfamiliar with the formalities of furnishing evidence to the Court for consideration. Ms Sem’s Affidavit deposes to matters of fact, including the welfare and emotions of Ms Sem and Mr Singh concerning the result of the Partner Visa application. This material is irrelevant to the Court’s task of judicial review and clearly is inviting the Court to consider the merits and facts of the circumstances, therefore Ms Sem’s Affidavit is inadmissible and will not be considered: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). As to Mr Singh’s Affidavit:
a)paragraphs [1]-[7] of Mr Singh’s Affidavit recite factual material that is already disclosed in the Court Book materials or adverted to in the Tribunal Decision;
b)paragraphs [8]-[10] summarised the findings of the Tribunal and provided some general opinion or interpretation as to particular findings, which simply invites the Court to engage in fact finding which is not the task of the Court on judicial review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
c)paragraph [11] and Annexure B plainly invites the Court to engage in impermissible merits review and seeks to provide new evidence of facts that were not before the Tribunal, therefore in addition to being irrelevant it is inappropriate for the Court to consider material proffered to invite the Court to disagree with the Tribunal’s factual findings: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8] per Nicholson J (“MZXHY”);
d)paragraph [12] and Annexure C again present new evidence to the Court that has no bearing on jurisdictional error, and further pleads for the Court to exercise compassion in the circumstances of Mr Singh and Ms Sem, but again this is irrelevant to the task of judicial review, and this material was not before the Tribunal: MZXHY at [8] per Nicholson J;
e)paragraphs [13]-[14] are irrelevant to the Court’s task on judicial review as they pertain to matters of fact and present as passionate pleas for the Court to remit the matter to the Tribunal in light of what has been stated in Mr Singh’s Affidavit;
f)paragraph [16] and Annexure D are irrelevant as Mr Singh’s employment history and employment stability is not in issue in the proceedings, nor is his commitment to Ms Sem and his child, rather the issue for the Court is whether the Tribunal fell into jurisdictional error, and therefore this material is inadmissible.
Most, if not all, of Mr Singh’s Affidavit is inadmissible on the basis that it invites the Court to engage in impermissible merits review contrary to longstanding principle: Wu Shan Liang. That material was therefore not “relied” upon or read into evidence.
The written submissions filed by Mr Singh on 15 August 2014 can be summarised, and to the extent necessary dealt with and considered, as follows:
a)paragraphs [1]-[23] recount the factual history of Mr Singh’s migration to Australia and Ms Sem’s migration history and is irrelevant or otherwise not in issue before this Court;
b)paragraphs [24]-[32] summarise the “relationship claims” of Mr Singh and reference passages of the Delegate’s Decision, again this is not relevant to the issues before this Court;
c)paragraphs [33]-[108] go into some detail recounting the Delegate’s Decision and providing “commentary”. The Court’s jurisdiction is to review the Tribunal Decision, not the Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4), and it is well established that if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 (“Ahmed”); Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J (“Martinez”). Furthermore, the Tribunal affirmed the decision not to grant the Partner Visa on a different basis to that of the Delegate, and therefore the Court considers it irrelevant to consider submissions pertaining to the Delegate’s Decision when it has effectively been superseded by the Tribunal Decision and this Court must review the Tribunal Decision;
d)paragraphs [109]-[117] refer to the Tribunal seeking further submissions on “compelling reasons” to waive the Migration Regulations sch.3 criteria and how these were explained or described by the Delegate and the Tribunal;
e)paragraphs [118]-[127] recount the reasons Mr Singh “hoped” would amount to compelling and compassionate circumstances and are irrelevant for the Court to consider;
f)paragraphs [128]-[140] discuss the documents that Mr Singh provided to the Tribunal in support of the request for further evidence he and Ms Sem were in a de-facto relationship for 12 month or compelling reasons to waive that requirement. Mr Singh seeks to make arguments on why these documents are relevant and explained inconsistencies. This is material that was before the Tribunal to consider, and to the extent Mr Singh purported to explain further some parts of this evidence or documentation these are not relevant to the Court’s task on judicial review and again plainly invite impermissible merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
g)paragraphs [141]-[178] are, almost verbatim, the “grounds” of the Judicial Review Application.
In respect of the submissions in reply filed on 28 August 2014, paragraph [1] seeks leave to rely on the submissions as Ms Sem would “be devastated” if Mr Singh did not respond. This is not a basis for the Court to grant leave to rely on the submissions, however the Court has considered these below to the extent relevant.
Jurisdictional Error
The Court on a judicial review must determine if the Tribunal Decision is affected by jurisdictional error: Migration Act, ss.474 and 476. This Court must exercise a power of judicial review, a review limited to determining the legality of the Tribunal Decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J. This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine if an applicant ought to be granted a particular visa: Wu Shan Liang & Ors CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Waensila
Waensila was relevant to these proceedings as one of the matters for the Tribunal was to consider was if there were compelling reasons for waiving the sch.3 criteria of the Migration Regulations in response to the requirement of cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations. The Full Court of the Federal Court held that “compelling reasons” are not restricted to those existing at the time of the application, and the Minister therefore conceded that following the delivery of reasons in Waensila the Tribunal (at CB 376 at [63]-[64]) having referred to and followed Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557 which the Full Court of the Federal Court expressly overruled in Waensila meant the Tribunal had fallen into jurisdictional error as the Tribunal had not taken into account “compelling reasons”, being Ms Sem’s pregnancy, that were existing after the date of application: CB 376 at [68].
Insofar as Mr Singh’s Judicial Review Application at [11] and [36] states that the Tribunal should have considered that compassionate circumstances existed at the time of the Tribunal Decision, and to some extent the assertions made at paras.[21] and [31]-[33] of the submissions filed 28 August 2014 submissions, those submissions are to be accepted in light of the Full Court’s judgment in Waensila. The Court therefore finds that the Tribunal’s consideration at CB 376 at [68] and [70] were therefore affected by error.
While the Minister conceded that the Tribunal had fallen into the same error as was identified as a jurisdictional error in Waensila, the Minister was not prepared to concede that the matter should be remitted for reconsideration as the Tribunal had made an alternative finding on an independent basis and therefore the Tribunal Decision would nonetheless have been the same in any event. The alternative finding the Minister referred to was at CB 374 at [51] whereby the Tribunal held that Mr Singh did not meet the additional criteria in reg.2.03A(3) of the Migration Regulations.
Mr Singh’s supplementary submissions accepted that the only issue for determination was whether the Tribunal’s determination that Mr Singh did not meet the additional criteria contained in reg.2.03A of the Migration Regulations contained a jurisdictional issue, and that Waensila was not relevant to the determination of this issue.
The criterion and the findings
Mr Singh was required to meet the requirements of cl.820.211(2) of the Migration Regulations, which relevantly reads 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… and
…
(d) in the case of an applicant who is not the holder of a substantive visa—either:
(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.
It was accepted that Mr Singh did not satisfy the relevant criterion of sch.3 of the Migration Regulations, although Mr Singh asserted that the reasons as to why he did not meet criterion 3001 of sch.3 of the Migration Regulations were that he relied on the inadvertent advice of a migration agent. This does not change the fact that Mr Singh did not meet the criterion, and therefore the explanation went no further than to be considered a “compelling” reason to waive the criterion. Following Waensila, the Minister conceded the Tribunal fell into error in failing to consider Ms Sem’s pregnancy as a “compelling reason” pursuant to cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations. As a result of this concession there is no need for the Court to consider Additional Ground 3 as it concerned an error in cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations and the Minister concedes, albeit not on the point that Additional Ground 3 pleads, that the Tribunal erred in respect of this point.
What remains in issue in the present case largely derives from the finding that Mr Singh did not meet the additional criteria applicable to de-facto partners as prescribed by reg.2.03A(3) of the Migration Regulations:
(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
(v) a Partner (Temporary) (Class UK) visa;… and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
The Tribunal addressed the “compassionate and compelling circumstances” as follows: CB 373-374 at [47]-[50]:
47. The applicant has submitted that should the Tribunal find that the parties had not lived together in a de facto relationship for the 12 months prior to the lodging of the application, then there are compelling and compassionate reasons for the grant of the visa.
48. He submits that the sponsor is expecting their child and the sponsor's children are attached to him. In relation to the sponsor's children, the Tribunal is not satisfied on the limited evidence provided that the applicant is a significant person in the sponsor's children's lives and therefore does not accept that this is a compelling and compassionate reason for the grant of the visa. The Tribunal accepts the evidence provided that the sponsor is pregnant but does not accept that as a compelling and compassionate reason for the grant of the visa.
49. He also submits that he is unable to return to his home in India as his life is in danger from terrorist groups, his father shot and his family in danger. The applicant provided a translated First Information Report, which he claims is evidence of what happened to his father. The FIR is dated 28 May 2007, names the applicant's father as the complainant as well as several others as those who are the subject of the complaint and provides details of the dispute in the village. The applicant submitted that he has changed his identity as a result and submitted the photograph contained in his India passport dated December 2007 and the photograph on his driver's licence in which he no longer has a beard or moustache or wears a turban. The Tribunal does not accept that this in itself is evidence that he has changed his identity. The applicant submitted that he returned to his home in India in 2009/2010. The applicant lodged a Protection visa application in view of the circumstances of his personal safety, which the Department considered and refused. The Tribunal has considered the applicant's claim that his life is in danger and does not consider that the evidence provided indicates that his life is in danger from terrorist gangs. Therefore, the Tribunal does not accept this reason as a compelling and compassionate reason for the grant of the visa.
50. The applicant also refers to his representative at the time being incompetent. The Tribunal considers that it is incumbent upon an applicant to be aware of their immigration status at all times as well as the conditions attached to any visa granted. The Tribunal does not consider this is a compelling and compassionate reason for the grant of the visa.
Additional Ground 1
Additional ground 1 is as follows;
1. The Second Respondent failed to accord the Applicant procedural fairness when determining whether the Applicant established compelling and compassionate circumstances for the grant of the visa under regulation 2.03A(3) of the Migration Regulations 1994 (Cth). Particulars of the failure to accord procedural fairness are that that the Second Respondent did not advise the Applicant that it was not going to treat the best interest of the sponsor’s children as a primary consideration and invite him to comment on this course.
Mr Singh’s Submissions
Mr Singh’s submissions are as follows:
a)Mr Singh submitted that the Tribunal failed to accord procedural fairness when it determined it was not satisfied that he established compelling and compassionate circumstances for the grant of the visa under reg.2.03A(3) of the Migration Regulations;
b)the obligations contained in Art.3 of the Convention on the Rights of the Child 1989 (TR) ("Convention") are not mandatory considerations, a majority of the High Court held that ratification of the Convention gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interest of the visa applicant's children as a primary consideration when making a decision whether to cancel a visa and in not doing so an applicant is not afforded procedural fairness: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALR 353 at 291-292 per Mason CJ and Deane J ("Teoh");
c)the key question is whether the Convention has any application to this case and it will if the Tribunal's determination whether a visa applicant has established compelling and compassionate circumstances for the grant of the visa is an "action concerning children";
d)the meaning of 'concerning' is not to be construed narrowly and the Tribunal's decision was, clearly enough, an action as it concerned Ms Sem's three children because a determination would result in either Mr Singh remaining at home with his two step-children and child or being separated from them;
e)given that Art.3(1) of the Convention applied to this case, Mr Singh had a legitimate expectation that the Tribunal would act consistently with the Convention and the Tribunal did not treat the best interests of Ms Sem's three children as a primary consideration when it made its decision rather it made a finding that it is not satisfied on the limited evidence provided that Mr Singh is a significant person in the children's lives, and as such was not a finding about what their best interests indicated that it should decide;
f)Mr Singh accepts that the relevant power is not an exercise of discretion; rather it the attainment of a certain state of satisfaction; and
g)that Mr Singh was given the opportunity to present any evidence or argument to the Tribunal in relation to the position of Ms Sem’s children is no answer as Teoh required the Tribunal to notify Mr Singh that it was not going to treat the best interests of the children as a primary consideration, and it did not do so, and that is the relevant failure to accord Mr Singh procedural fairness.
Minister’s Submissions
The Minister submitted as follows:
a)in McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 the first jurisdictional error raised was that Ms McNamara was denied procedural fairness because she had a 'legitimate expectation' that the Tribunal would act in conformity with the Convention and treat the interests of her children as 'a primary consideration' and Whitlam J noted that the ground rested on propositions raised in Teoh;
b)in McNamara it was contended that the scheme of the Migration Act precluded the Tribunal taking the identified expectation into account in reaching its decision and that contention was accepted, and Whitlam J went on to:
i)refer to s.65 of the Migration Act requiring the Tribunal to be 'satisfied' of various matters, and that the section does not confer a power to be exercised as a discretion;
ii)observe that the application of the Migration Regulations Schedule 3 criteria would mean that the applicant would have to leave Australia and apply overseas for residence on spouse grounds, and that the consequences for the children were at the forefront of the reasons advanced by the applicant for not applying the Schedule 3 criteria; and
iii)conclude the applicant had not been denied the opportunity to present any material or argument on this topic, that there was no procedural unfairness, and that before the Tribunal decided whether to waive the Migration Regulations Schedule 3 criteria, it was not obliged to give any notice to the applicant by virtue of the ratification of the Convention;
c)in light of McNamara, there is no jurisdictional error as a result of the Tribunal not having taken into account the best interests of the children as a primary consideration in reaching its decision as s.65 of the Migration Act is not a discretionary power, and the requirement that there be compelling reasons to waive the Migration Regulations schedule 3 criteria demonstrates a "statutory or executive indication to the contrary" of the existence of any legitimate expectation;
d)unlike the decision-makers in Teoh, the Tribunal was relevantly exercising powers that did not involve the exercise of discretion, rather, the decision-making power depended upon the decision-maker's state of satisfaction under s.65 of the Migration Act that Mr Singh met the criteria for a Partner Visa;
e)although McNamara was a case where the Tribunal considered whether there were compelling reasons for not applying the Migration Regulations Schedule 3 criteria, its principle is not confined to such cases and it has wider application to decisions under the Migration Act which do not involve the exercise of a broad discretion, but require the decision-maker to be satisfied that specific criteria for the grant of a visa are satisfied;
f)Mr Singh poses the question of whether the Convention has any application in his case, and answers in the affirmative by assessing that the subject matter of the Tribunal falls within the ambit of the Convention, yet that approach assumes that it was even open to the Tribunal to apply the obligations under the Convention in determining the respective visa criteria and the Minister’s positon is that it was not open to the Tribunal to consider and apply the obligations under the Convention as the scope of its consideration was confined to the particulars of those visa criteria;
g)it is accepted that the reasons disclose that the Tribunal did not have regard to Teoh and to a legitimate expectation that the best interests for children would be taken into account as a primary consideration, nor did the Tribunal take them into account as a primary consideration and if there is a legitimate expectation that the Convention be considered the Tribunal has not considered the best interests of the children;
h)the Convention is not an applicable Australian law, rather a Convention to which Australia is a party and has ratified, but it is not the law of Australia;
i)in considering whether there were compelling reasons for the purposes of reg.2.03A of the Migration Regulations the Tribunal was not required to take into account or have regard to the best interests of the children as a primary consideration because as the members of the High Court observed in Teoh, even where, as in that case, there was a statutory discretion to make the decision, that did not require the Tribunal to have regard to the Convention and require the Tribunal to take into account the best interests of any children, but that if the Tribunal was not going to do so, then the “legitimate expectation” required that the person affected be given notice of that, there was no requirement here on the clear authority of McNamara for the Tribunal in this matter to give notice to Mr Singh; and
j)in any event, there was no procedural unfairness to Mr Singh who was given the opportunity to present any evidence or argument to the Tribunal in relation to the position of Ms Sem's children.
Teoh and McNamara
The facts in Teoh were that Mr Teoh had been convicted of drug offences and sentenced to a term of imprisonment, the result of such was that his application for a permanent entry permit was refused. The Immigration Review Panel acknowledged that Mr Teoh was the “bread winner “for the family, provided emotional and physical support for his wife and children and there was a serious risk that the family unit would collapse if Mr Teoh were removed from Australia, but that the compassionate claims were not compelling enough for the waiver of the character requirement in view of Mr Teoh's criminal record. The majority of the High Court found that ratification of the Convention gave rise to a legitimate expectation that the Minister would act in conformity with the Convention and treat the best interests of the Mr Teoh’s children as a primary consideration, and that as the Minister had not treated the best interests of the children as a primary consideration Mr Teoh had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision inconsistent with the legitimate expectation. It was further held that it is not necessary that a person seeking to set up such a legitimate expectation be aware of the Convention or personally entertain the expectation rather, it is enough that the expectation is reasonable in the sense that there are adequate materials to support it: Teoh at 291 per Mason CJ and Deane J.
Teoh stands for the principle that the ratification of an international convention is an adequate foundation for a legitimate expectation, with the qualification that it is so only in the absence of any statutory or executive indication to the contrary: at 291 per Mason CJ and Deane J. The dissenting view of McHugh J at 314 in Teoh captures the criticism that has been directed at the majority in Teoh:
It seems a strange, almost comic consequence if procedural fairness requires a decision maker to inform the person affected that he or she does not intend to apply a rule that the decision-maker cannot be required to apply, has not been asked or given an undertaking to apply, and of which the person affected by the decision has no knowledge.
In Department of Immigration and Ethnic Affairs v Yad Ram (1996) 69 FCR 431; (1996) 23 AAR 134 at 436-438 per Hill J the Federal Court explained the majority judgment in Teoh:
It is common ground between the parties that at the very least Suzanne's future was a matter that it was relevant for the Tribunal to consider. But what the Tribunal did was to conclude that it was required, both by the decision of the High Court in Teoh and by the common law, to make it a primary consideration. In my view, neither Teoh nor the common law as at present enunciated support this proposition…
It is to be noted that the Court in this passage makes it clear that a decisionmaker is not bound to treat the interests of a child as a primary matter. Rather, all the Court is saying is that before a decision-maker decides to embark upon a contrary course, a person affected must be given notice and an opportunity to be heard. Thus it would be an error of law for the Tribunal to consider itself bound as a result of Teoh to give Suzanne's future a primary consideration…
Although it is quite unnecessary to do so, I would say something as to the joint ministerial statement… When, in Teoh, Mason CJ and Deane J refer to "executive indications to the contrary", it may well be that their Honours intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force.
When initially referring to executive comments, their Honours do so in the context of the act of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world. I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more Ministers made statements suggesting that they at least had decided otherwise.
The Minister submitted that Teoh was incorrectly decided, and the Court observed at the hearing that the principles are not without criticism by other Courts, although Teoh has not been overruled and therefore remains binding authority. Such is not surprising given at 434 per Hill J Yad Ram referred to a government statement released after Teoh that opined:
on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law.
In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; (2003) 77 ALJR 1829;(2003) 201 ALR 327 at [101]-[102] per McHugh and Gummow JJ it was observed that :
[101] However, in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. The curiosity is that, nevertheless, such matters are to be treated, if Teoh be taken as establishing any general proposition in this area, as mandatory relevant considerations for that species of judicial review concerned with procedural fairness.
[102] The reasoning which as a matter of principle would sustain such an erratic application of invocation doctrine remains for analysis and decision.
In Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; (2012) 86 ALJR 1019; (2012) 290 ALR 616 at [65] per Gummow, Hayne, Crennan and Bell JJ observed:
…the phrase "legitimate expectation" when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded
The facts of McNamara were that Ms McNamara failed to meet the criterion of cl.820.211(d)(ii) of the sch.2 of the Migration Regulations and on review Ms McNamara claimed the Tribunal had fallen into error as Ms McNamara had a legitimate expectation that the Tribunal would act in conformity with the Convention and treat the interests of her four children as a primary consideration. This Court is bound by McNamara and therefore the Tribunal not fallen into error in the manner expressed in Waensila. This Court would have been bound to find that Mr Singh did not have a legitimate expectation in the context of cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations to take into account the Convention and was thereby denied procedural fairness.
McNamara was not concerned with reg.2.03A of the Migration Regulations, and therefore for the Court to determine if the principle extends to reg.2.03A of the Migration Regulations it is necessary to refer to McNamara at [9] per Whitlam J explaining why he found the scheme of the Migration Act precluded the Tribunal taking the “legitimate expectation” into account:
It is axiomatic that s 65 of the Act requires the decision-maker to be “satisfied” of various matters. Section 65 does not confer a power to be exercised as a discretion. In the present case it was the “Schedule 3 criteria” that required attention. The application of those criteria would result in the applicant being obliged to leave Australia and to apply from overseas for residence on spouse grounds. The consequences for her children were at the forefront of the reasons advanced by the applicant for not applying the Sch 3 criteria. The applicant was not denied the opportunity to present any material or argument on this topic. Neither the transcript of the Tribunal hearing nor the applicant's affidavit show any procedural unfairness. Before the Tribunal decided whether to waive the Sch 3 criteria, it was not obliged to give any notice to the applicant by virtue of the ratification of the United Nations Convention. This alleged error is not made out.
Both McNamara and Teoh are binding upon this Court, and the Court is not in the position to entertain the Minister’s submission that Teoh was wrongly decided. The Court indicated at hearing that to resolve this matter it would have to embark upon a winding road in a dark wood somewhere between McNamara and Teoh.
Consideration
Regulation 2.03A of the Migration Regulations prescribes additional criteria where a party is claiming to be in a de-facto relationship. As Mr Singh was required to satisfy this criteria in order to be granted a Partner Visa, these “additional criteria” can be considered “primary criteria”. Regulation 1.09A of the Migration Regulations define what is meant by “de facto”.
As “prescribed criteria”, reg.2.03A of the Migration Regulations is, pursuant to reg.2.03(1) of the Migration Regulations and for the purposes of s.31(3) of the Migration Act, a “primary criteria” that Mr Singh was required to satisfy to be granted the Partner Visa. Given in McNamara it was held that cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations, in drawing attention to sch.3 of the Migration Regulations, required the Tribunal to be “satisfied” there were compelling reasons not to apply the criterion of sch.3 of the Migration Regulations and that was a “primary criteria” for Mr Singh to satisfy it can be inferred that as reg.2.03A of the Migration Regulations was prescribed and a “primary criteria” it also did not oblige the Tribunal to give any notice to Mr Singh by virtue of the ratification of the Convention. In circumstances where Mr Singh appears to have conceded that McNamara is authority that if the same matter were pressed in respect of reg.820.211(2)(d)(ii) of sch.2 of the Migration Regulations it would be that there was no legitimate expectation, the same can be said in respect of reg.2.03A of the Migration Regulations not giving rise to a legitimate expectation.
Article 3 of the Convention reads:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
The question arises as to if “compelling and compassionate reasons” can be considered to encompass “actions concerning children”. In Teoh the Court considered this should be given a broad reading and application: Teoh at 289 per Mason CJ and Deane J and 302 per Toohey J. In Suleyman v Minister for Immigration & Multicultural Affairs [2000] FCA 610 at [51] the Federal Court said :
The impact which decisions or actions might have on children will range across a very broad spectrum. The circumstances in Teoh would place that case at or very close to one end of the spectrum. At the other end of the spectrum, one might find a situation where, for example, a child stood to lose contact with a more distant relative, such as an uncle or aunt, who was not living as part of the family unit but who might otherwise have provided some emotional support or stability for the child. A decision to deport such a relative could not, in my view, be categorised as an “action concerning children”. It is cases which fall towards the middle of the spectrum which will present difficulties of categorisation. And that, in my view, is where the present case lies. The departure of the applicant from Australia will not deprive his daughter of a breadwinner; nor will it lead to any family breakup. It is apparent that Sabran is already in an emotionally and physically secure family environment with her mother, her stepfather and her young half-brother But it will deprive her of any realistic chance of maintaining contact with her own father. This is no small matter, and in my view is sufficient to bring this case onto that side of the spectrum which enables it to be categorised as “an action concerning children”.
The Tribunal had found that Mr Singh was not a “significant person” in Ms Sem’s children’s life: CB 347 at [48]. The evidence provided included that Mr Singh and Ms Sem shared the bills and Ms Sem looked after the children although Mr Singh did so when she was unwell. Ms Sem confirmed she was in receipt of Centrelink parenting payments and at CB 325 it appeared that Ms Sem received a parenting payment in excess of $700 for the fortnight of 22 October 2013 until 4 November 2013.
[Is Teoh now otiose given s.357A of the Mgration Act is an exhaustive statement of natural justice?]
In Zin Mon Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; (2010) 187 FCR 449 at [117] per Lander J concluded a denial of procedural fairness had been "remedied" by allowing the appellant to put further submissions. Mr Singh was provided an opportunity, and he accepted that opportunity, to put further submissions forward on compelling and compassionate circumstances. Mr Singh referred to the difficulty Ms Sem would face if she were to relocate with her children as being that her life and safety were in danger because of the claims he raised regarding terrorist gangs trying to harm him: CB 345. The Tribunal rejected that any such harm awaited him on the basis of the evidence before it. Mr Singh. This was the only issue Mr Singh raised in respect of the difficulty Ms Sem and her children would face if they were to come to India with him. It is true that Mr Singh raised submissions in this Court, via his Judicial Review Application and his various written submissions, that the Tribunal should have considered that the children need their father and his child needs his father. Mr Singh did not raise those points in his submissions to the Tribunal, though did so in this Court less that one math after the Tribunal Decision. It is unfortunate that Mr Singh did not think to make these submissions to the Tribunal at the appropriate time, however he had the opportunity to do so, was capable of doing so and unfortunately did not.
In the circumstances of this case the Court is satisfied that Additional ground 1 is not made out because:
a)where the Convention is not an applicable Australian law;
b)s.357A of the Migration Act is now an exhaustive statement of natural justice as it applies to the Tribunal, therefore limiting the effect of Teoh ;
c)the Tribunal was therefore not required to take into account or have regard to the best interests of the children as a primary consideration;; and
d)in any event, there was no procedural unfairness to Mr Singh as he had the opportunity to present any evidence or argument to the Tribunal in relation to the position of Ms Sem's children.
In respect to the claim at ground 34 that the Tribunal gave little weight to the relationship between Mr Singh and his stepchildren, the Court notes that at CB 373 at [45] the Tribunal stated it accepted the evidence of the witnesses that Mr Singh would spend time with Ms Sem’s children. However at CB 374 at [48], and to the same effect at CB 376 at [68], the Tribunal stated:
In relation to the sponsor’s children, the Tribunal is not satisfied on the limited evidence provided that the applicant is a significant person in the Sponsor’s children’s lives and therefore does not accept that this is a compelling and compassionate reason for the grant of the visa
In ground 35 Mr Singh claims that the Tribunal gave little weight to the psychological well-being of Ms Sem and that Ms Sem would suffer anxiety and depression if he were to leave. The Tribunal stated at CB 376 at [69]:
The Tribunal has considered the effect on the sponsor if the applicant is required to depart Australia. She indicated that she would travel to India to be with him. The sponsor indicated it would be difficult without the applicant. The Tribunal does not consider the reasons put forward as compelling reasons…
The Tribunal Transcript reveals that Ms Sem indicated no more to the Tribunal than that she would accompany Mr Singh to India as she cannot live without him and that if it were the only choice, however she would like to stay with her two children and “husband”, however the Court notes that Ms Sem and Mr Singh did not marry until 20 August 2014 and it is unclear if she is referring to her previous husband whom she divorced in October 2013, or Mr Singh. It was reasonable on this evidence for the Tribunal to conclude that the effect of a visa refusal on Ms Sem was not a compelling reason to grant the visa as she had indicated a willingness to go with Mr Singh if required. Further, in the post-hearing submissions Mr Singh stated this could not happen because of the threats to his safety that would be exposed upon Ms Sem and the children, however the Tribunal had already stated it did not accept this therefore it was not a matter the Tribunal needed to consider any further.
In response to the claim the Tribunal may have conflated “compelling” and “compassionate”, in Chan v Minister for Immigrations & Anor [2015] FCCA 47 at [29]-[30] per Judge Driver this Court stated:
29. These facts meant that in order to succeed in a case before the Tribunal, Ms Chan had first to persuade the Tribunal that there were compelling reasons for granting the visa notwithstanding that Ms Chan had not complied with criterion 3001 in the Schedule 3 criteria. Secondly, Ms Chan had to persuade the Tribunal that she and Mr Gordon had been in a de facto relationship prior to her visa application (notwithstanding that they had not then lived together) or that there were compassionate and compelling circumstances for the grant of the visa if she was unable to establish the prior subsistence of a de facto relationship.
30. If Ms Chan was unable to persuade the Tribunal on either of those issues then it necessarily followed that she would be unsuccessful. Although the Tribunal, in its reasons, dealt with both questions, it was only necessary for it to deal with the first (the 28 day issue) because it declined to waive the requirement. The Tribunal dealt with the second question (relating to the application of regulation 2.03A(3)) briefly at [67]-[68] of its reasons Nevertheless, and somewhat confusingly, the Tribunal considered all of the arguments advanced by Ms Chan in relation to compelling circumstances (for the purposes of clause 820.211(d)(ii) also for the purposes of considering regulation 2.03A(3))… This is not necessarily an error on the Tribunal’s part as factors that may be relevant to one discretion may also be relevant to the other. A mixing of the two, however, is apt to cause confusion… A circumstance may be compassionate but not compelling and there is a risk that by considering circumstances for multiple discretionary purposes, the Tribunal may fall into error
In the post hearing submissions Mr Singh provided he used headings “Compelling reasons for not being a holder of a substantive visa” (relating to needing a waiver of criterion 3001) and “Compelling reasons for waiving the 12 months de facto requirement”: CB 342-343. The compelling reason Mr Singh advanced for waiving the Migration Regulations sch.3 criterion were the inadvertence of the migration agent and Ms Sem’s pregnancy while the “compelling reasons”, though this should be “compelling and compassionate” as it is in respect of reg.2.03A of the Migration Regulations, for waiving the 12 month de-fact requirement were that the evidence was they had lived together since 1 June 2012, tradition and cultural custom did not allow them to live together until after they became engaged on 1 June 2012, Mr Singh was busy with “immigration issues with my migration agent and the department”, there was an oversight in changing address details for Centrelink due to Ms Sem’s grandfather’s death, Mr Singh is in danger in India from terrorist gangs and Ms Sem cannot accompany him for this reason. The matters Mr Singh raised in respect of both the compelling reasons and compelling and compassionate circumstances overlapped to some extent and the Court does not consider this reveals any error, nor that the Tribunal improperly applied the respective tests. It serves to note that Mr Singh did not raise in his post interview submissions that a compelling reason was his relationship with Ms Sem’s children or the impact upon those children if he were to depart.
The Tribunal Transcript further demonstrates that the Tribunal was careful not to conflate the issues of “compelling reasons” and “compelling and compassionate circumstances” and explained the different requirements for what was required under reg.2.03A of the Migration Regulations and the 12 month relationship criterions, and the waiver of the Migration Regulations sch.3 criterion: Tribunnal Transcript at p.25-27. The Tribunal made the following remark at the hearing:
So there are two hurdles. If I’m not satisfied that you were in a de-facto relationship from 1 June 2012, unless you can establish compelling and compassionate circumstances for the grant of the visa then the visa can’t be granted because you don’t meet the 12 month requirement. If you can establish the compelling and compassionate circumstances for the grant of the visa, the next hurdle is that criteria 3001 you don’t meet, criteria 3001 applies which means the visa can’t be granted unless there are compelling reasons for the waiver of the schedule three requirements.
The Tribunal clearly considered the claims Mr Singh put forward, and that the Tribunal made findings that were adverse to what Mr Singh had hoped does not amount to jurisdictional error. That the Tribunal was not satisfied that Ms Sem’s pregnancy was a “compelling reason” was a factual finding that this Court cannot disturb. It was the Tribunal who was to be satisfied and not this Court and while reasonable minds may differ, it cannot be said that the conclusion that Ms Sem’s pregnancy was not a compelling circumstances is a conclusion that no other decision maker could arrive at: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 at [130] per Crennan and Bell JJ.
No jurisdictional error arises on these grounds.
Ground 32 and 37
Ground 32 is in the following terms:
32) Moreover, if my partner goes to India with her two kids, we have to consider that the two kids need to have contact with their biological father. Moreover, the welfare of the kids have to be considered as they have lived in Australia all this while and go to school in Perth. It is not reasonable for my partner and children to go and live in India notwithstanding the issue of safety for us all.
37) The Family Law in place in Australia also gives priority to the children’s welfare and contact with the children by both parties is paramount and is enshrined in law. Even the rights of the child are respected in international law. It is not in the psychological interest of the mother to be denied her partner’s support during her current pregnancy and when the child is born.
The issue raised in these ground was the basis upon which the Court made orders to adjourn the hearing on 29 August 2014 and refer Mr Singh for pro-bono assistance. What arises in this ground is considered above in Additional Grounds 1 and 2 respectively.
Ground 38
Ground 38 pleads for the Court to grant Mr Singh a Partner Visa to remain in Australia. This Court cannot do that, and this is not a proper ground of judicial review.
Submissions filed 28 August 2014
The matters raised in the applicant’s 28 August 2014 submissions are considered hereunder.
Paragraphs [2]-[4] purport to simply disagree with the Minister’s submissions and the Tribunal Decision, Mr Singh states that “To my knowledge I did provide compelling and compassionate reasons”. It is for the Tribunal to be satisfied that compelling and compassionate reasons are provided, and even if Mr Singh heartily believes he provided those reasons it is not sufficient to establish jurisdictional error.
Paragraphs [5]-[6] refer to Mr Singh lacking legal representation and therefore his Judicial Review Application may “well fall short of legal standards”. Many applicants in judicial review proceedings are unrepresented, and the Court accepts this and notwithstanding the somewhat unusual form the applicant’s grounds and submissions have taken, both the Court and the Minister have addressed them.
Paragraph [7] seems to submit that Mr Singh misunderstood the requirements necessary to satisfy the grant of a Partner Visa as he was under the impression that it was just that he and Ms Sem were in a “genuine and continuing relationship”, which the Tribunal accepted. That Mr Singh was unaware of the Partner Visa criterion is not a ground upon which the Tribunal can be seen to have fallen into jurisdictional error. It was for Mr Singh to be aware of all of the criterion he was required to satisfy. Paragraph [8] merely refers to the Ministers submissions and what was stated and adds no legal argument.
Paragraphs [9]-[10] again are cavilling with the merits and simply recite factual circumstances as to what the Centrelink documents showed and the explanation of Mr Singh as to why they show this, and as such are unable to be considered by the Court on judicial review.
Paragraph [12] again is misconceived as Mr Singh purports to state that the Tribunal fell into error on the basis that in his opinion his reasons and circumstances were compelling. Furthermore, Mr Singh claimed that he did not have time to collect documents in support of the application for a Partner Visa, however this overlooks the fact that is it for Mr Singh to put forward the evidence and arguments in support of the contention that he is entitled to the Partner Visa: Abebe at [187] per Gummow and Hayne JJ. Procedural fairness requires only that a party be given a reasonable opportunity to present a case: it is for an applicant to take the best advantage of the opportunity to which they are entitled: Sullivan v Department of Transport [1978] 1 ALD 383; (1978) 20 ALR 323.
Paragraph [13] refers to the Delegate not raising any issue with the question of Mr Singh not having a substantive visa, and therefore not satisfying criterion 3001 of sch.3 of the Migration Regulations and compelling reasons to “waive” the criterion, when applying for the Partner Visa and therefore that the Tribunal was not obligated to look into this matter. This is again misconceived as the Tribunal considers the matter “afresh” and “does over again” the Delegate’s Decision whether to grant or refuse the Partner Visa: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; (1963) 37 ALJR 182; [1964] ALR 517, CLR at 502 per Kitto J. The Tribunal was not obliged, but rather was mandated pursuant to s.65 of the Migration Act, to consider if Mr Singh satisfied the criterion to be granted a Partner Visa.
Mr Singh further contends that he was not familiar with immigration rules and requirements and that his migration agent at the time caused him to delay applying for the Partner Visa causing his failure to meet criterion 3001 of sch.3 of the Migration Regulations. The Court makes the following observations in respect of this submission:
a)Mr Singh made submissions as to his migration agent acting irresponsibly, and the Tribunal addressed those concerns at CB 374 at [50] and CB 376 at [66] concluding that it was for Mr Singh to be aware of his immigration status at all times: therefore this argument was raised and rejected by the Tribunal;
b)Mr Singh himself refers to his migration representative acting “incompetent and irresponsible”, however mere negligence, inadvertence and incompetence does not constitute jurisdictional error, rather there must be something which constitutes a “fraud” on the Tribunal: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Mallik at [23] per Judge Lucev;
c)there is no evidence on affidavit of the advice that Mr Singh received from his migration agent concerning his applying for a Partner Visa while he was still the holder of a substantive visa, and in any event the last day on which Mr Singh was the holder of a substantive visa was 28 March 2011 and Mr Singh thereafter held bridging visas. Mr Singh did not apply for the Partner Visa until 6 June 2013, well outside the 28 day period after the expiry of the last substantive visa he held;
d)Mr Singh completed the Partner Visa application without the assistance of any third party: CB 15, and there is no indication that Mr Singh engaged a migration agent in the process of applying for the Partner Visa, specifically a “Mr Charanvir” who is the migration agent alleged it have acted incompetently and who a letter attached to the submissions from “EasyMigrate” stated was referred to the Western Australian Police and the Department of Immigration for investigation;
e)Mr Singh acknowledges at para.[14] he could have applied for a Partner Visa but instead applied for a Protection Visa on the advice of his agent. While this is unfortunate it was a forensic choice by Mr Singh to therefore not pursue the Partner Visa application and he must live with the consequences thereof; and
f)the Court cannot have regard to para.[15] as it is irrelevant and seeking merits review given Mr Singh’s submissions is asking the Court to note that he and Ms Sem were actually in a relationship since February/March 2011, notwithstanding at CB278 Mr Singh’s submission to the Tribunal was that he and Ms Sem “first met each other at EVE Night Club” on 1 June 2011 and “became friends”.
Paragraph [17] criticises the Delegate for acting “too hastily”. This Court does not review the Delegate’s Decision.
Paragraph [22] appears to take offence at the Minister’s submissions stating that Mr Singh’s application “attacks” the merits of the Tribunal Decision as he is “not competent to ‘attack’… as I do not have the intellectual skills”. Mr Singh then proceeds to, using a different phrase, cavil with the merits of the Tribunal Decision as he professes that he is seeking justice for his family because he wants to “be with them” and “this whole exercise ought to revolve around the axis of family…something the Tribunal seems to take lightly”. This submission is of no utility. All that it does is to express emphatic disagreement and persistence in Mr Singh’s belief that there were compelling and compassionate reasons. However strong these beliefs, it is the Tribunal that must be satisfied and this submission simply seeks impermissible merits review.
Paragraphs [31]-[33] relate to the jurisdictional error arising in light of Waensila, but to the extent otherwise these submissions again attempt to raise issue with the Delegate’s Decision this is not the task of this Court on judicial review: Ahmed; Martinez at [20] per Rares J. Contrary to Mr Singh’s submission the Delegate not addressing “compelling reasons” did not disadvantage Mr Singh as the Delegate had no need to consider compelling reasons as the Delegate was not satisfied Mr Singh and Ms Sem were in a genuine relationship and met the requirements of cl.820.211(a) of sch.2 of the Migration Regulations: CB 202-203. Insofar as para.[33] suggests a “better assessment” of the “compelling an compassionate reasons” this is irrelevant and provides no legal basis for a finding of jurisdictional error, rather is simply Mr Singh’s opinion on how the Tribunal might better have assessed his circumstances, and once again invites impermissible merits review.
Paragraphs [38]-[39] of the written submissions plead facts that Mr Singh claims were not given enough weight and also new evidence, that Mr Singh is now a father a husband. This is again impermissible merits review.
Those paragraphs of the 28 August 2014 submissions not mentioned above have been considered in respect to the grounds of the application. In respect to the four documents attached to the 28 August 2014 submissions the Court notes all of these materials are dated after the Tribunal Decision and therefore the Court cannot consider them MZXHY at [8] per Nicholson J; Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 at [9]–[11] per O’Loughlin J.
Conclusions and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error, and the application must therefore be dismissed. There will be an order accordingly. There will also be orders to appropriately amend the name of the Minister and the Tribunal: see [1] above.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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