Singh v Minister for Immigration
[2018] FCCA 3420
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3420 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – application to Court for review of decision of Administrative Appeals Tribunal affirming decision of delegate not to grant a partner visa because the sponsor had already sponsored two partner visa applicants previously – no compelling circumstances affecting the sponsor under reg.1.20J(2) of the Migration Regulations 1994 (Cth) so as to not apply reg.1.20J(1) –no jurisdictional error affecting the decision of the Administrative Appeals Tribunal established by applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth) |
| Cases cited: AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 Baston v Minister for Immigration and Border Protection [2018] FCA 73 |
| Applicant: | AMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2632 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 13 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Levingston |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Mr M. Cleary of Counsel |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in Court on 13 February 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2632 of 2016
| AMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 30 years, having been born on 24 February 1988.
By Amended Application filed in Court on 13 February 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 15 September 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 September 2015 refusing to grant to him a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth).
Background
The Applicant arrived in Australia in 2007 on a Temporary Graduate (Subclass 485) visa. He lodged his application for the Partner visa on 23 June 2014.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.
His Partner visa application was based on being in a spousal relationship with an Australian citizen, Ms Maureen Romita Ram (the sponsor), whom he had married in Granville on 9 June 2014 and who was the sponsor for his Partner visa application. At the time of the Partner visa application the sponsor was aged 37 years, having been born in Fiji on 20 May 1977. She had arrived in Australia on 17 November 1983.
In her Sponsorship for a Partner form lodged with the Department of the Minister on 23 June 2014 the sponsor admitted that she had previously sponsored two former spouses to whom she had been married and divorced before meeting the Applicant and marrying him.
The sponsor has a son by name William Ram (William) who had been born on 1 February 2002 and who was the child of a short-term relationship between her two former marriages.
It was necessary for the Applicant to be sponsored by the sponsor both at time of application and time of decision, and for her sponsorship to have been approved by the Minister so as to satisfy the criteria for the grant of the temporary Partner visa.
However, by force of reg.1.20J of the Regulations the Minister was precluded from approving the sponsorship of a sponsor in relation to a temporary Partner visa if the relevant sponsor had previously sponsored two former spouses who had applied for and been granted Partner visas, unless under reg.1.20J(2) the Minister was satisfied that there were compelling circumstances.
Regulation 1.20J(2) of the Regulations provided as follows:
(2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.
At the hearing Mr Levingston appeared for the Applicant and Mr Cleary of Counsel appeared for the Minister. They agreed and informed me that it was common ground for the purpose of this proceeding that:
a)the sponsor had previously sponsored two Partner visas; and
b)unless the Minister was satisfied that there were compelling circumstances affecting the sponsor, the force and effect of subsection (1) of reg.1.20J precluded the Minister from approving the sponsorship of the Applicant.
In this regard I note that in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 (Babicci) the Full Court of the Federal Court of Australia per Tamberlin, Conti and Jacobson JJ stated at 286 [5]:
[5]The need to exercise this power arose because the appellant had previously sponsored two former spouses for visas. He was therefore disqualified under the provisions of reg 1.20J(1) from sponsoring another spouse unless the discretion conferred by reg 1.20J(2) was exercised.
Decision of Delegate
In his Decision Record the Delegate noted that the sponsor had previously sponsored a Mr Ajesh Anish Ram on 12 February 1997 and a Mr Satendra Lal on 11 July 2002, and that both of these gentlemen had been granted Partner visas. The Delegate found that in these circumstances the Applicant had to satisfy the Minister that there were compelling circumstances affecting the sponsor.
The Delegate noted that one of the claims put forward in support of the existence of compassionate and compelling circumstances by the Applicant was that he had been caring for William and had taken him out on social outings and had helped him with his studies and that the Applicant and William were best friends to each other. The Delegate also recorded that the sponsor had said that William and the Applicant had become close and there had been thereby a significant change in William’s personality for the better.
Nevertheless, in the result the Delegate found that no compassionate or compelling reasons had been provided sufficient to satisfy him that there were compelling circumstances affecting the sponsor for the purposes of reg.1.20J(2) of the Regulations and the Applicant could therefore not satisfy cl.820.211(2) as he did not have a sponsor whose sponsorship had been approved by the Minister and was still in force. The Delegate therefore refused to grant a temporary Partner visa to the Applicant, which meant that the Delegate could not grant a permanent Partner visa to the Applicant.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 9 September 2015 via his registered migration agent and gave a copy of the Decision Record of the Delegate to the Tribunal at that time. On 1 September 2016 he appeared before the Tribunal at a hearing to give evidence and present arguments and was represented by his registered migration agent. The Tribunal took oral evidence from the Applicant, the sponsor and two witnesses.
At [22] of its Decision Record the Tribunal noted that the issue in the case was whether there were compelling reasons affecting the sponsor such that the restriction in reg.1.20J(1) should not be applied and at [29] noted its acceptance at face value of the claims made by the Applicant and the sponsor that they were in a genuine relationship together.
From [8] – [11] the Tribunal recorded the evidence of the Applicant given at the hearing, and from [12] – [15] recorded the evidence given by the sponsor at the hearing. At [14] the Tribunal recorded that the sponsor had given evidence that there was a special bond between the Applicant and her son. At [16] – [17] the Tribunal recorded the evidence given by the sponsor’s mother at the Tribunal hearing, at [18] the evidence given by a witness and at [19] the submissions made by the registered migration agent at the hearing.
The registered migration agent’s submissions to the Tribunal were to the effect that the Tribunal ought to have regard to the rights of William in this case as compelling reasons for waiving reg.1.20J(1) and that if the Applicant was not granted the Partner visa this would impact emotionally on William.
At [26] of its Decision Record the Tribunal noted that it had regard to Babicci and the consideration in that case of the meaning and effect of the expression “compelling circumstances”.
Then from [32] – [33] the Tribunal expressed its reasoning in relation to whether there were compelling circumstances, and concluded as follows at [34]:
[34]The Tribunal has assessed the circumstances of the applicant and sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that any of the individual circumstances claimed by the applicant provide a compelling circumstance affecting the sponsor which would justify not applying the sponsorship restriction. When considered in combination, the Tribunal is not satisfied that the total circumstances of the applicant provide compelling circumstances affecting him which would justify not applying the sponsorship restriction.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a temporary Partner visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are as follows:
1. The Second Respondent fell into jurisdictional error in the review decision by failing to give sufficient weight to the relationship between the Applicant and his Sponsor's child in the consideration of compelling circumstances arising in the consideration of the direction in Regulation 1.20J of the Migration Regulations.
Particulars
(a) The existence of the relationship between the Applicant and his Sponsor's child enlivened consideration of the Convention on the Rights of the Child (CROC) which in turn gave rise to the consideration of the 'best interests of the child' and thus required a proper and genuine consideration of that relationship as a proper basis for a determination as to whether, in the current case there arose compelling circumstances as contemplated in Reg.1.20J(2) of the Migration Regulations.
(b) In so doing the second respondent failed to give proper and genuine consideration to the claims advanced by the Applicant and thus failed to excite the relevant jurisdiction conferred by the statutory scheme.
2.The Tribunal fell into jurisdictional error by reason of it having confused it's duty to consider 'compelling circumstances' affecting the sponsor in accordance with the provision of Regulation 1.20J (1) and (2)
Particulars
(a) At paragraph 34, the Tribunal in assessing the circumstances of the applicant and the sponsor was not satisfied that the total circumstances of the applicant provided evidence of compelling circumstances affecting him which would justify not applying the sponsorship restriction.
At the hearing and in his Supplementary Written Submissions, Mr Levingston further appeared to submit that the Tribunal failed to take into account or insufficiently took into account the length of the relationship between the Applicant and the sponsor.
Consideration
Ground 1
Jurisdictional error could conceivably be shown in this case if the Delegate had manifested a legally erroneous view as to what needed to be satisfied with respect to “compelling circumstances”.
However, that is not the case here. At [26] of its Decision Record the Tribunal referred to Babicci and the necessity of it considering “whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way” or “are so powerful that they lead the [tribunal] to make a positive finding that the [provision] should be waived”. This meaning of the expression “compelling circumstances” is in accord with the authorities.
The meaning given to the word “compelling” by the Tribunal accords with the meaning given by French CJ, Bell, Keane and Gordon JJ in PlaintiffM64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 (M64/2015) at [31] and that of Gageler J at [64].
At [31] of M64/2015 their Honours said:
[31] In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.
(citations omitted)
At [64] of M64/2015 Gageler J said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
(citations omitted)
In Babicci, Tamberlin, Conti and Jacobson JJ at [21] – [24] had stated as follows:
[21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge's view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24]There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.
Finally, in Liu v Minister for Immigration and Border Protection [2015] FCA 1368 Markovic J said in connection with the expression “compelling circumstances” at [39]:
[39]The circumstances must be “so powerful” that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria.
In my view the Tribunal did not misinterpret or misapply the expression “compelling circumstances” or take a legally erroneous view as to what constituted compelling circumstances.
This Ground asserts that the Tribunal failed “to give sufficient weight to the relationship between the Applicant” and William in the consideration of whether there were compelling circumstances. This is an inauspicious commencement to an argument in favour of jurisdictional error because, as Hely J stated of the analogous expression “exceptional reasons” in Patel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 115 at [10]:
[10]It is apparent that the MRT's decision turns on an issue of fact, in particular whether it was satisfied that exceptional reasons existed for the grant of the visa. There is nothing to suggest that the MRT misunderstood the meaning of "exceptional reasons". Whether "exceptional reasons" exist is essentially a question of fact and degree for the MRT to determine. Its determination on that issue involved no question of law: see Secretary of the Department of Social Services v Hodson [1992] FCA 338; (1992) 37 FCR 32 at 42 in the context of the expression "special circumstances".
In my view at a factual level Ground 1 fails because the Tribunal did give meaningful consideration to whether or not the Applicant’s relationship with William established either cumulatively or individually “compelling circumstances affecting the sponsor”.
The Tribunal noted the claim of the relationship between the Applicant and William at [10], [11], [14], [18] and [19] of its Decision Record. Then at [32] the Tribunal summarised the claims said to constitute compelling circumstances, as follows:
[32] The applicant has claimed that compelling reasons for not applying the sponsorship restrictions are the fact that the applicant and sponsor met each other and were not subject to an arranged marriage, the length of the relationship between the parties and the applicant's bond with his step-son, the sponsor's child from a previous relationship.
(emphasis added)
However, at [33] of its Decision Record the Tribunal expressed its reasons for not being satisfied that the relationship between the Applicant and William constituted a “compelling reason”, as follows:
[33] The Tribunal accepts a relationship may have developed between the applicant and the sponsor's son during the marriage but this must have been the case to some degree during the sponsor's second marriage, since William Ram was born prior to that occurring and spent part of his life in that household. The sponsor's second marriage endured for longer than the current relationship and her son would have been affected by the breakdown of that relationship. In addition, the sponsor's son has lived with the sponsor prior to the commencement of her relationship with the applicant and he will continue to have her companionship and support. The rights of the child have been taken into account in this case, however, the Tribunal is not satisfied the claimed compelling reason affect the sponsor such that the sponsorship restrictions should be waived.
At [34] the Tribunal stated:
[34] The Tribunal has assessed the circumstances of the applicant and sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that any of the individual circumstances claimed by the applicant provide a compelling circumstance affecting the sponsor which would justify not applying the sponsorship restriction. When considered in combination, the Tribunal is not satisfied that the total circumstances of the applicant provide compelling circumstances affecting him which would justify not applying the sponsorship restriction.
I further note that there was no suggestion in this case that the Convention on the Rights of the Child had been incorporated into Australian domestic law. It thereby follows that there was no statutory obligation binding the Tribunal to treat the best interests of the child as a primary consideration in its decision, in the sense of that consideration being mandatory. As Tracey J said in AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at 60 [18]:
[18]The applicant accepts that none of the relevant treaty obligations has been incorporated in Australian domestic law. There is, therefore, no statutory obligation on the Minister or other decision-makers under the Act to give effect to those obligations when making decisions under the Act…
In reality this Ground appears to seek to invoke a merits review of the Tribunal’s finding in connection with the relationship between the Applicant and William which is not available in this Court and Ground 1 is not made out.
Ground 2
This Ground appears to suggest that the Tribunal “confused it's duty to consider 'compelling circumstances' affecting the sponsor” and that the Tribunal therefore misunderstood or misapplied reg.1.20J.
However, in the last sentence of [25] of its Decision Record the Tribunal correctly stated:
[25]These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg.1.20J(2).
Then again in the last sentence of [33] and at [34] of its Decision Record the Tribunal correctly considered whether or not the claimed compelling circumstances affected the sponsor, such that the sponsorship restrictions comprised in reg.1.20J(1) should not apply.
It follows that in my view the Tribunal understood reg.1.20J(2) correctly and applied it without legal error or legal unreasonableness.
Finally, in connection with his submission about the length of the relationship between the Applicant and the sponsor (see [23] above) Mr Levingston referred to Clause 10 of the Explanatory Statement to the Migration Regulations (Amendment) 1996 No.75 (Cth), which stated with respect to cl.820.211(2)(d) of the Regulations as follows:
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:
· where there are Australian-citizen children from the relationship; or
· where the applicant and his or her nominator are already in a longstanding relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
(emphasis added)
I infer that Mr Levingston contends that the reference in the Explanatory Statement to a relationship being in existence “for two years or longer” could be meaningfully availed of by the Applicant in the present case in establishing jurisdictional error. In any event, the same argument has been put to Judge Smith of this Court in Prempree v Minister for Immigration & Border Protection [2017] FCCA 220 (Prempree), who rejected it and found that the Explanatory Statement had no binding legal effect.
At [16] and [17] of Prempree his Honour said as follows:
[16]In oral submissions, counsel for the applicant argued that the Tribunal had failed to grapple with the argument that the length of the relationship alone was sufficient to justify the conclusion that there were compelling reasons to waive the criteria. Before turning to consider this argument it is necessary to deal briefly with the applicant’s reliance on the Explanatory Statement as the source of some obligation imposed on the Tribunal.
[17]Reliance on this statement wrongly elevates the Explanatory Statement to a statement of law which must be applied by the Tribunal. The statement has no legal effect and, even if it spoke in compulsory terms, it would not be binding on the Tribunal because it has no statutory force. In any event, contrary to the applicant’s argument, the statement relied upon only goes so far as to express an expectation rather than a requirement. For those reasons this aspect of the applicant’s argument is misplaced.
Similar submissions have been made in many cases over the years in relation to the asserted binding effect of the Procedures and Advice Manual (PAM3). However, PAM3, like the Explanatory Statement, has no binding legal effect.
In Baston v Minister for Immigration and Border Protection [2018] FCA 73 at [67] – [68] Siopis J recently stated:
[67]Mr Baston also alleged that the Minister had failed to refer to, or follow, two paragraphs of the department’s Procedures and Advice Manual (PAM) which appear to refer to the relevance of compassionate circumstances affecting the age and health of a person in instances where hardship would be caused to that person.
[68]However, the Minister is not obliged to follow the PAM and his failure to do so, even if established, would not amount to jurisdictional error (El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 (El Ess) at [45]).
The Full Court of the Federal Court of Australia in COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148 at 154 – 155 said of El Ess as follows at [31]:
[31] The appellant faced two further obstacles in relation to his reliance on PAM3. The first obstacle is the judgment in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 (El Ess) in which Gray J held at [45]:
[45]In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.
(emphasis added)
In my view these statements of principle as to the non-binding effect of PAM3 apply equally to the Explanatory Statement invoked by Mr Levingston in this case.
At [10] of its Decision Record the Tribunal referred to the Applicant having stated that his relationship with the sponsor was “now more than two years nine months old”. At [11] and [15] the Tribunal again referred to the length of the relationship. However, at [32] the Tribunal recorded that it was not satisfied that the fact that the Applicant and the sponsor had been in a relationship for three years was a compelling circumstance for waiving reg.1.20J(1).
In my view, Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Conclusion
Mr Levingston put to the Court all that could be reasonably said in aid of his client’s case, but in the result the Applicant has failed to establish jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 28 November 2018
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