Singh v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1899
Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – Indian citizen – refusal of partner visa – whether failure to take into account relevant considerations – whether irrelevant considerations taken into account – whether claim of domestic violence required to be considered – whether significant errors of facts affecting decision – whether jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 348, 368, 420, 422B, 476
Migration Regulations 1994 (Cth), regs.1.15A, 1.23, sch.2, cll.801.221, 820.221

Cases cited:
Alsalem v Minister for Immigration & Anor [2013] FCCA 1407
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1

Collins v Minister for Immigration [2003] FMCA 571
Fobizi v Minister for Immigration & Anor [2017] FCCA 1738; (2017) 323 FLR 226
Guven v Minister for Immigration & Anor [2006] FMCA 311
Kaur v Minister for Immigration & Border Protection [2014] FCA 1251
Latt v Minister for Immigration & Anor [2007] FMCA 766

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
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 Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

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

Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542; (2001) 177 ALR 473
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613

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Details
Case
[2019] FCCA 1899
Decision Date

CaseChat Overview and Summary

This matter concerned a judicial review application filed by Mr Singh against a decision of the former Migration Review Tribunal (MRT). Mr Singh, an Indian citizen, had his application for a partner visa refused. The core of his application to the Federal Circuit Court was that the MRT had failed to consider all relevant aspects of his visa application and had made significant errors of fact, amounting to jurisdictional error.

The legal issues before the Court were whether the MRT had committed jurisdictional error by failing to take into account relevant considerations, by taking into account irrelevant considerations, by failing to consider Mr Singh's claim of domestic violence, and by making significant errors of fact that affected its decision. Mr Singh contended that the MRT's decision was based on incorrect dates regarding his travel to India and his cohabitation with his ex-wife, Constance, leading to erroneous conclusions about the genuineness and commitment of their relationship.

Judge Antoni Lucev found that the MRT had made jurisdictional errors. The Tribunal's decision was based on demonstrably incorrect dates concerning Mr Singh's travel to India and periods of separation from Constance. These factual errors led the MRT to conclude that the relationship was not genuine or committed, and that Mr Singh had not met the criteria for the visa. The Court noted that the MRT had also failed to consider the evidence relating to domestic violence submitted by Mr Singh, which was a relevant consideration. The Court accepted Mr Singh's submission that the MRT's contradictory observations and failure to properly review the evidence constituted a failure to take into account relevant considerations and a failure to properly consider the facts, thereby amounting to jurisdictional error.

Writs were issued.

Orders

Orders of the court

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Background

Background to the litigation

The Judicial Review Application was filed by Mr Singh prior to his obtaining legal representation, together with an affidavit affirmed on 5 June 2015 (“Mr Singh’s June 2015 Affidavit”) in which he said that the grounds were those in “Attachment No 1” annexed to Mr Singh’s June 2015 Affidavit, and further, said that the Tribunal “has not considered all aspects of my visa application”. Attachment No 1 was also annexed to the Judicial Review Application, and in it Mr Singh submitted as follows:MRT’s decision was based on wrong dates mentioned by them in their decision record. This led them to incorrect conclusion in my case. I believe this was the jurisdictional error made by MRT in their decision making. Had they reviewed my case with correct dates and correct events their decision would have been appropriate in my case.I bring to your notice the following facts of my case:(a)In Paragraph 29, MRT mentioned in their decision that I went to India in December 2011 and returned to Perth in January 2012. These dates mentioned by MRT were entirely wrong. Also I wished to bring to your notice paragraph 18 MRT made the same error of mentioning date of my travel to India as December 2011. Based on these wrong dates coupled with other wrong observations (mentioned below) they concluded that I did not meet the criteria for receiving permanent visa. Please refer to paragraph 14 of their decision where in MRT mentioned the date December 2010 when I had gone to India and I returned from India to Perth in February 2011. These observations of MRT were contradictory and I believed it was jurisdiction error made by MRT.(b)I give you the correct dates of my travel to India - I went to India in early December 2010 and returned to Perth in first week of February 2011. My ex-wife Constance and I lived in newly leased unit at West Leederville from February 2011 till January 2012 (I had provided documentary evidence). MRT missed this fact completely and I believed it was jurisdictional error. MRT mentioned that there was separation between Constance and I from December 2011 till June 2012, which was again wrong observation by MRT as no separation took place between Constance and I during that period. The fact was that we were still living together at West Leederville till January 2012 and after expiry of lease at West Leederville in January 2012, Constance and I were looking for another property of at least two bedrooms so that we would have accommodated my mother who was to visit us in June 2012 for six months. Unfortunately, we could not find appropriate property from February 2012 till 1st week of June 2012. I was temporarily living with my friend at his house in Belmont during February 2012 till April 2012 and Constance was regularly visiting me and stayed with me most of the nights during February 2012 till April 2012. My ex-wife Constance was temporarily living with her mother at her mother’s house in Swan View during the same period. In the month of May 2012 (the whole month of May 2012), I had moved to Constance’s mother’s house at Swan View as her mother insisted on me to live with them until we would find a suitable property to lease. Constance and I lived with her mother for one full month in May 2012 till we found suitable property to lease from 7/6/2012 in Bentley. MRT missed out this aspect of my case. This was very important as Constance and her mother accommodated me in their house as one of their close family members. Had there not been a genuine, continuous, ongoing, mutually committed and exclusive relationship between Constance and I, why would Constance and her mother allow me to stay in their house where Constance’s younger sister and brother were also living with them. I believed MRT did not review the dates properly and ended up in hurried decision without considering all facts of my case, which I believed, was jurisdictional error on part of MRT.(c)I believed MRT mixed up the dates solely based on an undated letter written by my ex­ wife Constance referred to in paragraph 23. MRT concluded letter was written in December 2011 before I went to India in December 2011 which was entirely wrong. The fact was that Constance and l were living together happily at West Leederville in December 2011. The fact was that I went to India in early December 2010 and not in December 2011. MRT observations were based on assumptions that Constance wanted separation in December 2011 whereas fact was that we were living together and we had provided evidence to that effect. I believed it was jurisdictional error on part of MRT in their decision making.(d)MRT concluded that I was committed in my relationship whereas my ex-wife Constance was not committed from outset of our marriage (paragraph 27 and 28) which was totally wrong conclusion of MRT in my case. Enclosed please find a handwritten letter dated 14/06/2010 by my ex-wife Constance which described our history of relationship in her own handwriting and own words. How MRT had concluded there was no commitment between us. I believed it was again a jurisdictional error by MRT where MRT failed to review the facts in correct manner according to law.(e)The details and documents of family violence committed on me by my ex-wife Constance were submitted to DIBP and MRT did not take into consideration any one of them. DIBP had confirmed relationship was genuine and based on findings of Independent Expert (IE), DIBP refused permanent partner visa to me as IE concluded no family violence took place. One Govt. Authority DIBP confirmed the genuine relationship and other Govt. Authority MRT did not agree and I believed this kind of decision making itself was jurisdictional error. IE did not provide recording at the end of interview, neither DIBP, and DIBP provided report upon asking them (DIBP did not send me report of IE along with their letter). I believed such decision making was jurisdictional error.(f)I am submitting this appeal application to Hon Judge, Federal Circuit Court Western Australia, Australia to seek justice and request Hon Judge, FCC to quash decision of MRT and direct them to take decision according to law.(g)During course of appeal, I will submit further information. I request you to accept my appeal application and acknowledge it.(Transcribed verbatim).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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