Singh v Minister for Immigration and Anor

[2013] FCCA 1369

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1369

Catchwords:
MIGRATION – Application for spousal visa – Migration Review Tribunal decision – judicial review – whether jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5F; 359; 474; 476

Migration Rules, r.820.221

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Rahman v Minister for Immigration & Citizenship [2012] FCA 1312

Applicant: AMRIT PAL SINGH

First Respondent: MINSTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 161 of 2013

Judgment of: Judge Brown

Hearing date: 9 September 2013

Date of Last Submission: 9 September 2013

Delivered at: Adelaide

Delivered on: 19 September 2013

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to “Minster for Immigration Multicultural Affairs and Citizenship”.

2. The application be dismissed.

3. The applicant pay the cost of the first respondent in a fixed sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 161 of 2013

AMRIT PAL SINGH

Applicant

And

MINSTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Amrit Pal Singh, seeks to review a decision of the second respondent, the Migration Review Tribunal, made on 30 May 2013. 

2. The Tribunal decision affirmed an earlier decision of a delegate of the first respondent, the Minister for Immigration, Multicultural Affairs & Citizenship, not to grant the applicant a Partner (Temporary) (Class UK) visa, nor a Partner (Residence) (Class BS) visa. 

Background

1. The applicant is a citizen of India.  He first arrived in Australia on 7 July 2008, as the holder of a student visa.  He was pursuing higher education studies.  His visa was extended on 18 January 2011 and was due to expire on 11 May 2011. 

2. On 22 February 2011, the applicant married Ms Ebony Lutze, at Nailsworth, South Australia.  Ms Lutze is an Australian citizen by birth.  On 6 May 2011, the applicant applied for a partner (temporary) (class UK, sub-class 820) visa “the spousal visa”.  His sponsor for the visa was Ms Lutze. 

3. In support of his application for the spousal visa, the applicant provided a number of documents, which he asserted demonstrated that the marriage was genuine.  These documents included the following:

   ·A statutory declaration from Ajay Mittal, the applicant’s employer;

   ·A statutory declaration from Ms Lutze, providing details of how Ms Lutze and the applicant had met and fallen in love;

   ·A residential tenancy agreement naming him and Ms Lutze as tenants;

   ·Bank statements in respect of a joint account;

   ·Utility bills in the applicant’s and Ms Lutze’s name;

   ·Furniture and hotel invoices;

   ·A receipt for an item of jewellery;

   ·Photographs of the applicant with Ms Lutze.

The legal framework

1. In order to be granted a spousal visa, the applicant was required to satisfy the decision maker that he satisfied all the primary criteria set out in part 820 of Schedule 2 to the Migration Regulations 1994 (Cth). The applicable criteria, in this case, are 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:

   (i)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)    is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)     the applicant is sponsored:

   (i)     if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; …”

2. Ms Lutze was the applicant’s sponsor.  As previously indicated, she is an Australian citizen.  At all relevant times, she was over eighteen years of age.  The applicant was required to satisfy the applicable criteria, both at the time of his application and at the time of the relevant visa decision. 

3. Section 5F(1) of the Migration Act 1958 (Cth) (hereinafter referred to as “the Act”) specifies that a person is the “spouse” of another person, if the two people concerned are in a “married relationship”. 

4. Section 5F(2) of the Act provides that two persons are in a “married relationship” if:

   “(a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)    they:

   (i)     live together; or

   (ii)    do not live separately and apart on a permanent basis.”

The delegate’s decision

1. On 19 April 2012, the delegate wrote to the applicant advising him that the Department had received information that the married relationship between him and Ms Lutze was no longer in existence.  He was invited to explain his circumstances to the delegate, prior to any decision being made in respect of his decision for a spousal visa.  The applicant did not respond to this request. 

2. On 12 July 2012, the delegate refused to grant the applicant a spousal visa, on the grounds that the applicant had not satisfied the requirements of clause 820.221 of the Migration Regulations that he was in a married relationship, with his sponsor, Ms Lutze, at the required times.

The proceedings before the Migration Review Tribunal

1. On 26 July 2012, the applicant lodged an application for review of the delegate’s decision with the Migration Review Tribunal.  As a consequence of this application, on 1 March 2013, the Tribunal sent a letter to the applicant, asking him to comment on or to respond to information which the Tribunal considered would be relevant to any decision it was required to make. 

2. The gravamen of the information received by the Department was that, on 17 March 2012, Ms Lutze had advised it that she had withdrawn her sponsorship of the applicant. 

3. On or about 9 April 2013, the applicant responded to this request in writing.  He wrote as follows:

   “During my relationship with Ebony, I was abused mentally and physically by her on various occasions.  I did comply with her demands all the time but I was tortured to such an extent that I found it unbearable to live with her.  When I told her that I should not be treated like Dog she left me and withdrew my sponsorship.  I am in depression because of all these things in my life.  My family life is being ruined.

   During our separation she has realised her mistakes and told me that she intends to reconcile.  We are trying to work out on our relationship.  I want to be sure that I will not be abused in further.  She realised that she was not able to cope up with her work stress and few other matters which led her to often burst out on me.  She has left her old job and studying full time.  She is feeling better now in relation to frustration and work stress.

   We are working out on our relationship.  So kindly grant us time so we can be one again.  As we are no longer separated and intend to live life as husband and wife so I satisfy the criteria 820.221.”[1]

   [1]  See court book at page 158

4. The Tribunal scheduled the 10^th May 2013 as the date for the hearing of Mr Singh’s application to review the delegate’s decision.  In a letter informing him of the date, the applicant was told that, on the basis of the material before it, the Tribunal was then unable to make a decision in the applicant’s favour. 

5. In these circumstances, he was invited to appear before the Tribunal to provide any further evidence and make any further arguments, which he believed were relevant.  In particular, he was advised as follows:

   “The Tribunal may wish to take evidence from Ebony Lutze.  Please arrange for Ebony Lutze to attend the hearing.”[2]

   [2]  See court book at page 159

6. The applicant attended the hearing, but Ms Lutze did not.  At the hearing, the applicant gave evidence, in which he confirmed that he and Ms Lutze had not lived together since February or March 2012.  The applicant indicated that Ms Lutze was living with her parents but he saw her from time to time. 

7. At the hearing, the applicant provided other evidence, which can be summarised as follows:

   ·The applicant stated that his sponsor had been suffering from “work stress” in January of 2012;

   ·As a consequence of this stress, Ms Lutze had forbidden the applicant to attend his sister’s wedding in India and had torn his shirt;

   ·The applicant indicated that he himself had not sought any professional assistance for either family violence or his own depression;

   ·The applicant confirmed that Mr Mittel, was his boss and had also employed Ms Lutze, but she had stopped working for Mr Mittel’s company;

   ·The applicant indicated that Mr Mittel had paid the Migration Review Tribunal fee because he did not have a credit card;

   ·The applicant stated that he and Ms Lutze had had a joint bank account but it had been closed by Ms Lutze in early 2012. 

8. The Tribunal described the applicant’s evidence regarding his and Ms Lutze’s shared interests and the degree to which each provided the other with emotional support as “very vague”. 

9. In addition, the Tribunal noted “inconsistencies” in the applicant’s evidence regarding who had paid the applicant’s original spousal visa application fee, as the receipt in question indicated that it had been paid by Mr Mitell’s brother. 

10. At the end of the hearing, the Tribunal provided the applicant with information in its possession, which was adverse to the applicant’s claim, to the effect that there had never been a genuine relationship between him and Ms Lutze and that their marriage was one solely undertaken for immigration purposes. 

11. The applicant was given an opportunity to seek an adjournment, before commenting on this information, but chose not to avail himself of it.  Rather, he indicated that he and Ms Lutze had a good relationship together and wished for it to continue.  He asked for the Tribunal to grant him and Ms Lutze time to resolve their issues. 

12. In these circumstances, the Tribunal indicated to Mr Singh that, unless Ms Lutze provided evidence to the contrary, it would be accepted that she had withdrawn her sponsorship of the applicant and that there was no marital relationship between the two. 

13. The applicant was granted until 17 May 2013 (seven days) to provide evidence from Ms Lutze that the relationship in question was ongoing and she had retracted her withdrawal of sponsorship; 

14. Neither Mr Singh nor Ms Lutze submitted any further information, prior to the stated deadline.  In these circumstances, the Tribunal affirmed the decision not to grant the applicant the relevant spousal visa. 

15. The Tribunal found, on the basis of the evidence available to it, that the applicant and Ms Lutze did not share a mutual commitment to a shared life.  Although it was accepted that the marriage between the two was a legal one, it was found that the background to it were contrived for immigration purposes. 

16. In this regard, it was noted that the parties had shared a house, with other housemates, and did not live in a marriage-like relationship.  Since January of 2012, they had not lived together at all. 

17. In particular, the Tribunal noted that it had received a withdrawal of sponsorship, from Ms Lutze, which included an assertion that all previous claims relating to the financial and social aspects of the relationship had been contrived.  It was further noted that when the pre-tense of the relationship had ended, the joint bank account, held by the applicant and Ms Lutze, had been closed. 

18. In respect of issues of family violence, which might be relevant to the possible granting of a partnership visa, the Tribunal found that the applicant had made “very generalised and unsubstantiated assertions of family violence [and had only been able] to point to one relatively minor incident of violence.”

The current application to the court

1. The applicant commenced these proceedings on 4 June 2013.  The application is in time.  He seeks an order that the decision of the Tribunal be quashed.  The grounds for his application are as follows:

   “My application was refused based on the fact that my relationship with my wife (sponsor) was broken down for sometime.  As in every relationship couple have fights and get angry on each other.  In my case same things happened.  I had few issues with my spouse and had fights due to this she went to DIAC and informed them that we are separated and not being together anymore.  My visa was refused I applied for MRT.  Now as we are now back into relationship and working out our differences so I satisfy s.5f(2)(b) and (c).  Tribunal failed to put weight on the information supplied that I am my sponsor and reconciling and trying to ward out our differences.  Tribunal just have us 1 week time which is unfair as I asked for more time so we can be back together again as one.  Hence tribunal made an error in its judgement.”

2. In support of his application, Mr Singh swore an affidavit, which is in identical terms to his application.  The gravamen of his evidence is that he and Ms Lutze have resumed their relationship because they are engaged in a process of working out the differences between them.  He complains that it was unfair that he was only granted one week, by the Tribunal, to provide evidence in support of this contention. 

3. The application was listed before the court on 9 July 2013.  On this occasion, the applicant was given leave to file and serve any amended application and any other material on or before 13 August 2013.  The applicant has not availed himself of this opportunity.

4. The applicant appeared on his own behalf, at the hearing of his application for review of the Migration Review Tribunal decision on 9 September 2013.  On this occasion, he was assisted by a Punjabi interpreter and made brief oral submissions to the effect that the Tribunal hearing had been unfair to him because the Tribunal had not granted him more time to work out his relationship with Ms Lutze.

5. The respondent provided written submissions.  The Minister submits that it is not the role of the court to determine whether the applicant now meets any applicable visa criteria.  Further, the Minister submits that it is not the role of the court to review the merits of the Tribunal’s decision, rather its function is to determine whether the decision in question is affected by jurisdictional error. 

The legal framework to the court’s decision

1. Pursuant to section 476(1) the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”.

2. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Migration Act, which are of an administrative nature are “privative clause decisions”.

3. The decision, which the applicant seeks to review is such a “privative clause decision” as defined by section 474 of the Act.  The High Court in Plaintiff S157/2002 v Commonwealth of Australia[3] has held that the provisions of section 474 does not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error or have been made in bad faith.

   [3]  Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

4. An Administrative Tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[4]

   [4]  See Craig v South Australia (1995) 184 CLR 163

5. The hearing before me is not a merits review.  Rather it is a judicial review. I must be careful not to confuse the two. It is the function of this court to determine whether the decision of the Tribunal was within its legal powers.

6. It is not the function to examine the merits of the decision.[5] Accordingly this hearing is not a rehearing of all the available evidence. Rather the hearing is directed towards the legality of the Tribunal’s decision.

   [5]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

Conclusions

1. There is no error in the decision of the Tribunal, in so far as it concluded that Mr Singh and Ms Lutze were not in a genuine and continuing married relationship at the time of the hearing before it.  It was the task of the Tribunal to assess and weigh the evidence available to it, and make a decision. 

2. In my view, there was ample evidence, from which the Tribunal could reasonably conclude that the marriage between the applicant and his sponsor was not continuing and so did not confirm with the criteria provided by section 5F of the Migration Act.  In particular, Mr Singh conceded that he and Ms Lutze were no longer living together as at the date of the hearing.  

3. The central evidentiary issue before the Tribunal was the nature of this relationship, particularly given that Ms Lutze had resiled from her earlier position that the marriage was a genuine one, and as such, she was willing to sponsor Mr Singh’s visa application.  In these circumstances, Mr Singh was put on notice, that any evidence from Ms Lutze was likely to be central to its deliberations. 

4. Section 359(2) of the Migration Act allows the Tribunal to invite a person to provide information to it either orally or in writing.  In this case, such an invitation letter was sent to the applicant, in respect of Ms Lutze, on 1 March 2013. 

5. In addition, in the letter fixing the application for hearing, a further invitation was forwarded to the applicant requesting that Ms Lutze provide any additional evidence, in respect of the nature of the relationship between her and Mr Singh.  Ms Lutze did not accept either such invitation.

6. In my view, there was no procedural unfairness in the process entailed in the invitation letter process.  In addition, the applicant has not pointed to any legislative irregularity arising from this process.  In these circumstances, the Tribunal was entitled to make its own factual findings, in the absence of any further evidence from Ms Lutze.

7. This court is not empowered to substitute its own view of the evidence potentially available now and determine the issue afresh.  The Tribunal was the fact finder in the case.  In my view, its decision cannot be described as being based on irrelevant material or erroneous in any other way.  In my view, there is no such jurisdictional error. 

8. In his submissions to the court, Mr Singh has repeated his assertion that he and Ms Lutze are continuing in a process of reconciling their differences.  It is not my function to assess this evidence, which was identical to that provided to the Tribunal.  That was an issue within the sole domain of the fact finding tribunal. 

9. Notwithstanding the absence of Ms Lutze from the hearing and her failure to respond to the invitation to give evidence, the Tribunal provided Mr Singh with a further period of seven days, following the hearing’s conclusion, to provide additional evidence in respect of the nature of his relationship with Ms Lutze.  Again, he failed to avail himself of this opportunity. 

10. Accordingly, in my view, having found that the criteria necessary to grant the spousal visa in question had not been met, the Tribunal was bound to affirm the delegate’s decision.

1. It is an element of the applicant’s case that he complains that the period of seven days, granted to him to provide evidence from Ms Lutze, was in all the circumstances too short, and therefore procedurally unfair to him. 

2. I do not agree.  As previously indicated, the Tribunal made it clear to Mr Singh that Ms Lutze’s evidence was central and, in its absence, the Tribunal was likely to conclude the application adversely to him. 

3. The first such invitation was advanced on 1 March 2013.  The Tribunal was not required to postpone indefinitely its decision making function, until such time as the evidence from Ms Lutze was forthcoming. 

4. In this regard, the comments of Yates J in Rahman v Minister for Immigration & Citizenship[6] appear apposite, albeit that they apply to a different factual situation, relating to the undertaking of a language proficiency test.  His honour said as follows:

   “The plain fact is that the Tribunal was not under an obligation to indefinitely postpone finalisation of its review. Similarly, it was not under an obligation to postpone the finalisation of its review whenever the appellant informed it of his intention to sit for another test. If it were under such an obligation the review process could be postponed indefinitely by the expedient of the appellant simply providing the Tribunal with evidence that he had applied to sit for the test again. On the rationale of the appellant’s argument he could always ask, rhetorically, what prejudice would there be to the Minister if an extension of time of a few weeks were granted compared to the prejudice to him if such an extension were not granted?”

   [6]  See Rahman v Minister for Immigration & Citizenship [2012] FCA 1312 at [49]

5. Accordingly, in my view, Mr Singh has therefore not established that the Tribunal decision is affected by jurisdictional error.  Accordingly, his application will be dismissed.  It is also appropriate that the applicant pay the costs of the application, which will be fixed in the sum of $5,400.00.

6. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  19 September 2013