SINGH v Minister for Immigration

[2018] FCCA 2530

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2530

Catchwords:
MIGRATION – Partner visa – application for judicial review of decision made by Tribunal – applicant applied for visa on basis of a de facto relationship – applicant’s relationship with sponsor ceased prior to delegate’s decision – whether it was unreasonable for Tribunal to make a decision when applicant failed to attend hearing – whether Tribunal failed to comply with statutory obligations – applicant requesting impermissible merits review – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.29, 30, 31, 65, 360A, 362B, 362C, 379A, 379C, 476

Migration Regulations 1994 (Cth), reg.4.21, Sch 2 cl 820.211, 820.221

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZSSG v Minister for Immigration and Border Protection [2018] FCA 670

Applicant: HARPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1230 of 2016

Judgment of: Judge A Kelly

Hearing date: 3 August 2017

Date of Last Submission: 3 August 2017

Delivered at: Melbourne

Delivered on: 12 September 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms Ward

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed at $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1230 of 2016

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 10 June 2016, judicial review is sought of a decision of the then Migration Review Tribunal (Tribunal) made on 17 May 2016, affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (Act).

Background

1. On 5 March 2014, the applicant, an Indian national aged 35 years, made application for his visa on the basis of a relationship with his then de facto partner, Ms Jacqueline Louise Salvage, contending that such relationship had begun on 28 November 2011.

2. On 5 February 2015, the applicant contacted the Department of Immigration and Border Protection (Department), informing it that he was no longer in a relationship with his sponsor.  He also stated that he intended to withdraw his current application and re-lodge a further application for a Partner visa in respect of his new relationship with his new partner.

3. By letter dated 17 February 2015, the Department invited the applicant to comment upon the breakdown of his relationship with his original sponsor.  By that letter, the applicant was requested to respond within a period of 28 days.  He did not do so.

4. On 1 April 2015, a delegate of the Minister refused to grant the visa on the stated basis that the applicant did not satisfy the requirements of clause 820.221(1)(a) of Sch 2 to the Migration Regulations1994 (Cth) (Regulations) in that, at the time of the delegate’s decision, the applicant did not continue to meet the requirement that he was in a de facto relationship with an Australian citizen.

5. On 20 April 2015, the applicant applied to the Tribunal for review of the delegate’s decision. 

6. On 19 April 2016, the Tribunal wrote to the applicant inviting him to attend a hearing scheduled for 17 May 2016.  The Tribunal’s letter to the applicant advised, in part, that if the applicant did not attend the scheduled hearing, a decision on the review could be made without it taking any further action to allow or enable him to appear. It also advised that the Tribunal might dismiss the application without any further consideration of the application or the information before it.

7. On 10 May, and again on 16 May 2016, the Tribunal transmitted SMS messages to the mobile number supplied by the applicant in his application for review, reminding him of the hearing scheduled for 17 May 2016. 

8. The applicant did not attend the scheduled hearing on 17 May 2016. 

9. On that date, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa, providing a written statement of its reasons for that decision (Reasons). The Tribunal made its decision without taking any further action to enable the applicant to appear before it, and by its Reasons, provided a written statement which set out its decision and the reasons for such decision: Reasons, [7]; see ss 362B(1A), 362C(2).

10. The Tribunal recognised that the central issue in the application was whether the applicant was the de facto partner of the Sponsor: Reasons, [9]. It correctly identified that para 820.211(2)(a) and cl 820.221 relevantly required that, at the time the visa application was made and at the time of the decision, the applicant was the de facto partner of an Australian citizen or permanent resident or an eligible New Zealand citizen: Reasons, [10]. The Tribunal also recognised that the delegate had been satisfied that the applicant satisfied the requirements of cl 820.221(2) at the time of the visa application.

11. In those circumstances, the remaining question was whether the applicant was the de facto partner of an Australian citizen, permanent resident or an eligible New Zealand citizen at the time of the decision. 

12. The Tribunal observed that the applicant had contacted the Department on 5 February 2015, advising that he was no longer in a relationship with his original sponsor and that he wished to lodge a new application with a new sponsor.  Although the applicant had then been invited to comment on the breakdown of his relationship with his original sponsor and advised that, under certain circumstances, he may still be eligible for the grant of a partner visa, the applicant did not respond to that invitation. 

13. The Tribunal concluded that the only criteria of immediate relevance to the application was para 820.221(2)(a) of the Regulations, which required that the applicant be the spouse of the sponsoring partner. 

14. The Tribunal also observed that in forming an opinion whether the parties were in a de facto relationship, the Tribunal must consider all of the circumstances of that relationship including its financial aspects, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other: Reasons, [15]. 

15. The Tribunal considered that very limited information had been provided to the Department concerning the nature of the parties’ financial arrangements, social activities and household affairs or the extent of the commitment of the applicant and the sponsor to one another. The Tribunal considered that this limited information was outweighed by information supporting a conclusion that the relationship between the applicant and sponsor had ceased.

16. The Tribunal considered it to be determinative that the applicant’s relationship with the original sponsor had come to an end.  Upon that reasoning, the Tribunal affirmed the decision of the delegate not to grant the applicant a partner visa. 

17. In light of the Tribunal’s analysis of the facts and circumstances relating to the application for merits review, I am satisfied that the Tribunal applied the correct legal test to the application and brought an active intellectual process to, and gave genuine consideration to the matter: Minister for Immigration and Citizenship v Khadgi.[1]

    [1] (2010) 190 FCR 248, [57]-[59] (Stone, Foster and Nicholas JJ).

Procedural History

1. On 10 June 2016, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act.

2. The applicant also swore an affidavit on 10 June 2016 to which he exhibited a copy of the Tribunal’s decision and deposed that he had missed the hearing before the Tribunal by ‘mistake’.

3. By a Response filed on 4 July 2016, the Minister opposed the application and sought orders for its dismissal. 

4. Orders were made by consent on 23 November 2016 regulating the interlocutory steps to be made with a view to the preparation of the matter for trial.  Those orders provided for the application to be listed for final hearing on 3 August 2017.  Furthermore, those orders reserved to the parties liberty to apply for any further directions hearing or any application in a case on proper notice to the other parties. 

5. Although the consent orders provided that by 25 January 2017 the applicant file and serve any amended application, affidavits and submissions, the applicant did not take the opportunity to do so.

6. In those circumstances, submissions filed on behalf of the Minister were responsive to the application and Reasons. 

Judicial review

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth.[2]

   [2] (2003) 211 CLR 476.

2. Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia: s 29. A visa to remain in Australia for a specified period is one form of temporary visa: par 30(2)(a). By sub-s 31(3), the Regulations may prescribe criteria for a specified class. Certain criteria for a Partner visa are those set out in Part 820 of Sch 2 of the Regulations.

3. Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[3] Minister for Immigration and Citizenship v SZMDS.[4]  If the criteria for the grant of a visa are satisfied, the decision-maker must grant the application.  If not so satisfied, the visa application must be refused.

   [3](2004) 78 ALJR 992, [37]-[38].

   [4](2010) 240 CLR 611, [40], [102].

4. By para 65(2)(b) of the Act, a decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[5]

   [5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

5. As the applicant was self-represented on the hearing of the application for judicial review, I have re-examined the Reasons, his visa application and the other materials comprising the Court Book.

6. Before me the applicant submitted that he had informed the Department of the cessation of his relationship with his original sponsor and of his desire to lodge a new application with a new sponsor.  The applicant further stated that the Department had informed him that this application could not be lodged while he was onshore in Australia and that, in those circumstances, he had travelled to India, and lodged a further application while he was offshore. 

7. The applicant tendered a decision record of a delegate dated 8 August 2015 concerning a further application for a Partner visa, which related to the applicant’s new partner.  It is sufficient for present proposes to recognise that the applicant was informed that the Department could not consider his further visa application, but that the applicant’s new sponsor was entitled to apply for a merits review of the decision. The applicant informed this Court that his new sponsor proposed to make application for a merits review of this decision. 

Grounds of review

1. The applicant advanced six grounds of review.

2. Ground 1 of the application reads:

   That I wish to apply for Federal Circuit Court of Australia to present my case in front of Honourable Judge because my Partner (Temporary)(Class UK) visa application lodged on 05/03/2014 was refused by Department of Immigration on 01/04/2015.  I applied for Migration Review Tribunal to review my case on 21/04/2015 but my mistake I missed the hearing date and therefore I lost the case with AAT due to the blunder mistake.  So I lost the chance to prove my evidences (sic) and claims in regards to my Partner visa application.  Therefore, I request the court to please consider my case for hearing.  (Emphasis added)

3. The primary ground of the application set out above stands in contrast with the submissions made orally on 3 August 2017. 

4. The applicant made no attempt to support Ground 1 by a submission that he had missed the hearing date by any blunder or mistake.  Instead, the applicant suggested that his failure to attend the scheduled Tribunal hearing was due to a medical condition which he had at that time.  While the applicant’s affidavit had referred in general terms to his mistake in failing to attend the scheduled hearing, no attempt was made by that affidavit or otherwise to adduce evidence in support of the submission that the applicant was suffering from some medical condition sufficient to preclude his attendance at the scheduled hearing.

5. As noted above, the applicant was notified on two occasions of the scheduled hearing and responded to the invitation to attend that hearing.  There is no evidence that the applicant made any attempt to contact the Tribunal before the scheduled hearing to have that hearing adjourned or postponed.  The applicant made no submission to the effect that he had not received SMS hearing reminders, or that he had made any attempt to contact the Tribunal seeking to have the hearing adjourned or postponed.  Nor was there any evidence of any contemporaneous suggestion or explanation for any mistake or blunder in failing to attend the scheduled hearing.

6. I accept the Minister’s submission that the Tribunal had written to the applicant at his stipulated email address inviting him to attend the hearing to give evidence and present arguments in relation to his application: see ss 360A, 379A(5)(b), 379C(5) and the notice requirements prescribed by reg 4.21(4).

7. In those circumstances, the Tribunal was authorised by s 362B(1A)(a) to make a decision on the application for review without taking any further action to allow or enable the applicant to appear before it.

8. I also accept the Minister’s submission that it was not unreasonable for the Tribunal to proceed to make its decision in accordance with s 362B(1A). No error is demonstrated in respect of Ground 1: see Minister for Immigration and Citizenship v Li;[6] Minister for Immigration and Border Protection v SZVFW.[7]

   [6] (2013) 249 CLR 332, [76] (Hayne, Kiefel, and Bell JJ).

   [7][2018] HCA 30, [14] (Kiefel CJ), [69]-[70] (Gageler J), [118]-[123] (Nettle and Gordon JJ), [141] (Edelman J).

9. Grounds 2, 4 and 6 may be addressed collectively and read as follows:

   2 I would like to provide you documents and proof explaining change of my partner/relationship.

   4      Not enough time was given.

   6 Decision has been taken on very limited information & not enough time given to provide more evidence.

10. I accept the Minister’s submission that the applicant was provided an opportunity to comment on his relationship with his original sponsor:  see letter dated 17 February 2015 from the Department to the applicant.  Moreover, the applicant was invited to provide any additional documents or information to the Tribunal by a letter dated 10 April 2016.  This letter contained an invitation to the applicant to attend the scheduled hearing and to give evidence and make submissions.  At no stage before the scheduled hearing was any further supporting material provided, whether to the Department or the Tribunal.

11. As noted above, the applicant did not attend the scheduled hearing, despite having been sent two SMS reminders of that hearing.

12. I do not discern, from the Reasons or the Tribunal’s communications with the applicant before the scheduled hearing, that there had been any want of compliance with the obligations provided by Part 5, Div. 5 of the Act relating to the conduct of the review of the delegate’s decision.

13. The final two grounds – Grounds 3 and 5 – were in the following terms:

    3        Not all the evidences (sic) has been considered.

    5        I am still in de facto relationship.

14. Consideration of whether there is substantive merit in an application for judicial review requires that the reasons of the Tribunal be examined.  The close analysis of the factual evaluation and approach taken by the Tribunal is not merits review; it is part of the process of assessing whether serious findings made about an applicant have been made lawfully: SZSSG v Minister for Immigration and Border Protection.[8]  To that end, I have made that analysis of the Reasons.

    [8] [2018] FCA 670 at [6]-[7] (Allsop CJ).

15. However, in my view, the applicant was asking the Court to undertake a review of the merits of the Tribunal’s decision.  This is not an appropriate basis on which to challenge the Tribunal’s decision by way of judicial review:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang;[9] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[10] 

    [9] (1996) 185 CLR 259 at 272, (Brennan CJ, Toohey, McHugh and Gummow JJ).

    [10] [2004] FCAFC 10 at [10] (Gray, Tamberlin and Lander JJ).

16. It was for the applicant to identify jurisdictional error in the Tribunal’s decision.  I have examined the Reasons and materials comprised in the Court Book, and see no reason to conclude that the Tribunal had not considered the evidence before it.  There was no evidence before the Tribunal that the applicant was the de facto partner of an Australian citizen, permanent resident or an eligible New Zealand citizen at the time of the decision.

Conclusion

1. The applicant’s grounds of review do not support a conclusion that the Tribunal’s decision was affected by jurisdictional error and from my own examination of the Reasons and materials comprised in the Court Book, no such error is otherwise apparent.  The application for judicial review must be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  12 September 2018