Singh v Minister for Immigration

[2020] FCCA 2750

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2750

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner Temporary Class UK Visa – whether there were compelling reasons to waive the Schedule 3 criteria – Tribunal considered the applicant’s claims and evidence – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A

Migration Regulations 1994 (Cth), cl.820.211, criterion 3001, sch.3

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: MALKIT SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 95 of 2017

Judgment of: Judge Blake

Hearing date: 30 September 2020

Date of Last Submission: 30 September 2020

Delivered at: Melbourne

Delivered on: 30 September 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Solicitor Advocate for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The First Respondent’s name be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Application filed on 16 January 2017 be dismissed and such order becomes operative from the date written reasons are published.

3. The Applicant pay First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 95 of 2017

MALKIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(delivered ex tempore, revised from the transcript)

Introduction

1. This is an application for a review of the decision made by the Administrative Appeals Tribunal on 22 December 2016 (‘Tribunal’).  In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Partner Temporary Class UK Visa (‘visa’). 

Background

1. The applicant is an Indian National.  He arrived in Australia on 11 October 2013 on a student visa.  The student visa was cancelled on 7 November 2014.  On 8 June 2015, the applicant applied for the visa the subject of this application, based on his marriage to an Australian citizen, Shanice Karam (‘sponsor’). 

2. On 6 November 2015, a delegate wrote to the applicant. In that letter, the delegate addressed the Schedule 3 criteria. The delegate noted that the applicant was not the holder of a substantive visa at the time he lodged the visa application. The delegate also explained that the applicant, as a result of not holding a substantive visa, either did not meet or would not meet the Schedule 3 criteria, however advised the applicant that the criteria could be waived if there existed compelling reasons for not applying the criteria. The applicant was advised to put forward information in relation to, among other things, these matters.

3. On 12 January 2016, a delegate of the Minister refused to grant the applicant a visa. 

4. On 26 January 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. 

5. On 29 November 2016, the Tribunal invited the applicant to attend a hearing before it on 21 December 2016. The Tribunal also notified the applicant that the main issue for determination was whether the applicant had lodged his visa application within the time contemplated by Schedule 3 of the Migration Regulations 1994 (‘Regulations’). 

6. The applicant attended the Tribunal hearing on 21 December 2015 with two witnesses and the sponsor.  The applicant was assisted by a Punjabi interpreter at the hearing.  The applicant provided further documents prior to, and at, the hearing.  On 22 December 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa. 

7. The applicant filed an application for review in this Court on 16 January 2017 (‘Application’).  Two sets of orders have been made, permitting, amongst other things, the applicant to file any amended application or written submissions.  He has not done so.  The Minister has filed a court book and written submissions pursuant to court orders. 

Application for Review

1. The application contains three grounds of review, and they are as follows:

   ‘1. Jurisdictional error.

   2. Error in interpretation in legislation.

   3. Natural justice, I believe that I was not given a fair hearing.  My spouse is suffering from depression and needs my support.’

2. The applicant appeared before me at the oral hearing today, and made brief oral submissions.  He submitted that he wished to stay in Australia, and apply for the visa, and that his family is now here.  He did not expand upon, in any meaningful way, any of the grounds of review.  He said simply that he was seeking a review. 

3. The grounds of review contained within the application are not particularised, and that is not surprising, given that the applicant is unrepresented.  Grounds that are not particularised, and are not more than mere assertions, may be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.

4. Grounds 2 and 3 assert error in a generic sense.  It is therefore important to consider the reasons of the Tribunal.

5. The decision record of the Tribunal is set out at Court Book 198 onward.  In the decision of the Tribunal it:

   a)Noted the delegate refused to grant the visa, because the applicant did not satisfy clause 820.211 of the Regulations, because the applicant did not meet criterion 3001 in Schedule 3: see paragraph 3 of its reasons.

   b)Summarised the background and evidence before it, at paragraph 6 to 13 of its reasons, including the applicant’s claim that he was not aware of the difference between a substantive visa and a bridging visa, and that he was given misleading advice by his migration agent.

   c)Identified the issue before it as being whether there were compelling reasons to waive the Schedule 3 criteria: see paragraph 14 of its reasons.

   d)Noted there was no dispute that the applicant in the present case did not have a substantive visa at the time of the application: see paragraph 16 of its reasons.

   e)Set out the relevant criteria from criterion 3001, and concluded that the applicant did not satisfy criterion 3001, at paragraphs 17 to 19 of its reasons.

   f)Considered the applicant’s evidence in relation to, among other things, why he had not lodged the visa application in 28 days, finding it ‘implausible’ that he did not inform himself about the conditions of the visa.  Further, the Tribunal was not satisfied that the applicant did not lodge his application for his partner visa for reasons that where beyond his control: see paragraphs 20 to 24 of its reasons.

   g)Then moved on to consider whether there were compelling reasons to waive the Schedule 3 criteria, and among other things;

   i)Set out the relevant tests for assessing whether there exists compelling reasons: see paragraph 26 of its reasons.

   ii)Considered the applicant’s claims that he was not informed about the differences between a substantive visa and a bridging visa: see paragraph 27 of its reasons.

   iii)Considered evidence that the sponsor relied on the applicant for emotional and financial support, but noted that there was no medical or other documentary evidence to suggest the applicant’s departure would cause the sponsor such emotional hardship to constitute compelling reasons: see paragraph 28 of its reasons.  I pause to observe in this respect, that while the Tribunal had a medical certificate before it, dated 19 November 2016 (at Court Book 194) in relation to the sponsor, that certificate does no more than recite that the sponsor is suffering from anxiety and depression.

   iv)Considered evidence from the applicant about the personal circumstances of the sponsor: see paragraph 29 of its reasons.

   v)Considered claims that the sponsor’s condition and predicament had improved in the company of the applicant: see paragraph 30 of its reasons.

   vi)Considered evidence as to the hardships the sponsor would face if the applicant was required to depart Australia in paragraph 32 of its reasons. 

   vii)Considered evidence from the sponsor, as to the effects on her of the applicant’s immigration status, and her statements that she could not live without the applicant, and that he supports her completely: see paragraph 33 of its reasons.

6. Having considered the evidence advanced in respect of compelling reasons, the Tribunal:

   a)Accepted the parties derived emotional support and comfort from each other, and they appeared to have a genuine commitment to marriage: see paragraph 34 of its reasons.

   b)Did not accept that the existence of a genuine relationship was a compelling reason to waive the requirements of Schedule 3: see paragraph 35 of its reasons.

   c)Was not satisfied that requiring the applicant to go offshore to lodge the application would create such hardship that would amount to compelling reasons: see paragraph 37 of its reasons.

   d)Did not accept the applicant’s submission that it is was his migration agent’s negligence that caused him not to be aware of the conditions of his visa, and further noted the applicant’s admission that he should have known about his visa conditions: see paragraph 38 of its reasons.

   e)Considered there was no evidence of the applicant’s absence for a short period of his visa being processed would cause the sponsor such hardship that would amount to compelling reasons: see paragraph 39 of the Tribunal’s reasons.

   f)Noted the other forms of support available to the sponsor, in paragraph 40 of its reasons.

   g)In light of the above, was not satisfied that there existed compelling reasons for not applying Schedule 3 criteria: see paragraph 41 of its reasons.

7. By ground 2, the applicant asserts an error in interpreting legislation. It is not clear what error the applicant is complaining about. What is clear from the Tribunal reasons, and from what I have set out above, is that the Tribunal correctly identified the issue before it as being compliance with the Schedule 3 criteria, and whether there existed compelling reasons. It then referred to the criteria and the relevant legal tests in its decision, and then assessed the evidence against the relevant criteria and tests. The findings made by the Tribunal were open to it. I am unable to discern any error interpreting or applying the legislation or Regulations.

8. By ground 3, the applicant asserts that he was denied natural justice or procedural fairness.  Reading the ground generously, and for the benefit of the applicant, embedded within the ground may be an assertion that the Tribunal has failed to consider the claims and evidence of the applicant. 

9. I have, as noted above, summarised the reasoning of the Tribunal, and when that is considered, the following becomes apparent:

   a)The Tribunal set out the claims and evidence of the applicant and of the sponsor.

   b)The Tribunal actively engaged with the evidence and the claims.

   c)The Tribunal considered the applicant’s claims and evidence, including up to the time of making its decision.

10. The suggestion implicit within ground 3, that the Tribunal may have failed to consider the circumstances of the sponsor, or her reliance upon the applicant or that the applicant was denied a fair hearing, cannot be sustained when regard is had to the way in which the Tribunal approached the task before it.

11. I have separately considered the invitation from the Tribunal to the applicant to attend the hearing before it. That invitation is dated 29 November 2016, and is reproduced at Court Book 165. The invitation complies with the requirements of sections 360 and 360A of the Migration Act 1958. It also puts the applicant on notice that an issue to be considered is whether he meets the requirements contained in Schedule 3, and if not, whether there are any compelling reasons for not applying those requirements. In this respect, it should be further noted that all of the evidence considered by the Tribunal was contained within the delegate’s decision provided to the Tribunal by the applicant, was given orally by the applicant to the Tribunal or was provided in writing to the delegate. It therefore, cannot be said that the applicant was taken by surprise, or was otherwise prejudiced at the hearing.

12. For all of the above reasons, the application for review must be dismissed.  Costs usually follow the event, and I will make an order for costs in favour of the Minister, in accordance with the scale.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 6 October 2020