Singh v Minister for Immigration and Border Protection
[2018] FCA 1751
•15 November 2018
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2018] FCA 1751
Appeal from: Singh v Minister for Immigration & Anor [2018] FCCA 802 File number: NSD 438 of 2018 Judge: BESANKO J Date of judgment: 15 November 2018 Catchwords: MIGRATION – appeal from orders made by the Federal Circuit Court of Australia (the FCCA) – where FCCA made an order refusing the appellant’s application for leave to amend an application for judicial review and an order dismissing the appellant’s application for judicial review – where five grounds of appeal – whether Administrative Appeals Tribunal (the Tribunal) failed to consider whether the parties satisfied s 5F of the Migration Act 1958 (Cth) – whether Tribunal denied the appellant procedural fairness in acting on an invalid certificate under s 375A of the Migration Act – whether Tribunal misconstrued Public Interest Criterion 4020 in Schedule 4 of the Migration Regulations 1994 (Cth) and, in particular, it had asked itself the wrong question – whether Tribunal failed to address whether his relationship with the sponsor satisfied the requirements of the Migration Act – whether decision of the primary judge not to allow the appellant to raise as a ground of judicial review a complaint that the Tribunal erred in failing to consider the fraud perpetrated on the appellant as a compelling and compassionate circumstance Legislation: Migration Act 1958 (Cth) ss 5F, 65, 362A, 375A
Migration Regulations 1994 (Cth) Schedules 2, 4
Date of hearing: 23 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The Appellant appeared in Person Counsel for the First Respondent: Mr N Swan with Ms C Hillary Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs ORDERS
NSD 438 of 2018 BETWEEN: GURJINDER SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
15 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is an appeal from orders made by the Federal Circuit Court on 26 February 2018. On that day, the Federal Circuit Court made an order refusing an application by the appellant for leave to amend his application for judicial review and an order dismissing the appellant’s application for judicial review. On 26 March 2018, the appellant filed a notice of appeal in this Court. There are five grounds of appeal.
The appellant is a citizen of India. He married Ms Rachael Jeannette Allen in India on 19 February 2013. Ms Allen is an Australian citizen and she became the appellant’s sponsor for a visa to enter and remain in Australia. On 6 January 2015, the appellant was granted a Subclass 309 Partner visa and, on 10 February 2015, he entered Australia on that visa.
On 7 July 2016, the applicant’s application for a permanent Partner (Migrant) (Class BC) visa was refused. The basis of the delegate’s refusal was that the appellant did not satisfy the requirements of cl 100.222 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) because, in turn, he did not satisfy the requirements of Public Interest Criterion 4020 (PIC 4020) in Schedule 4 of the Regulations. Those provisions are as follows:
Subclass 100—Partner
100.222
The applicant:
(a)satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021; and
(b)if the applicant had turned 18 at the time of application—public interest criterion 4019.
Part 1—Public interest criteria
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The Administrative Appeals Tribunal
The issue before the Administrative Appeals Tribunal (the Tribunal) was whether the appellant satisfied the requirements of cl 100.222 in Schedule 2 of the Regulations and PIC 4020 in Schedule 4 of the Regulations.
The Tribunal found, on the basis of the appellant’s evidence, that his sponsor did not want to have a relationship with him and that, from approximately May 2015, the appellant paid an amount of money to the sponsor on a monthly basis for her to continue her involvement with his application for a Partner visa. It found that on 4 April 2016, the appellant’s sponsor refused to be in a relationship with him and stated that after the appellant became a permanent resident, consideration would be given to the parties’ relationship. The significance of that date is that on that day, the appellant provided to the Department statutory declarations from the appellant, the sponsor and the sponsor’s mother and grandmother wherein they claimed that the parties were in a spousal relationship when (as the Tribunal found) that was not the case. The information which the appellant provided to the Department on 4 April 2016 was provided in connection with his application for a visa and to support his claim that he continued to be in a spousal relationship with the sponsor.
Having made these findings, the Tribunal expressed its conclusions as to the issues raised by PIC 4020 as follows:
34.The Tribunal is satisfied that the applicant provided to the Department information on 4 April 2016, to support that he continued to be in a spousal relationship with the sponsor. For the reasons already stated in this decision, the Tribunal is not satisfied that the sponsor and the applicant were in a spousal relationship on 4 April 2016. As a result, the Tribunal is satisfied that the applicant has given, or caused to be given to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, information in those Statutory Declarations, that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made. The Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1).
35. As a result the applicant fails to meet the requirements of PIC 4020(1).
The Tribunal went on to consider whether there was a case for waiver of the requirements of PIC 4020(1) and decided that there was not.
Before leaving the Tribunal’s decision, I note that the Tribunal said that the Department had given the Tribunal its file and had issued a certificate under s 375A of the Migration Act 1958 (Cth) (the Act). The Tribunal then said:
22.This certificate requires the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person. The reason stated in the certificate for the non-disclosure is that the information contains information about Departmental investigations. The applicant was told that most of the other information is contained in the delegate's decision and the Tribunal will be putting the core of other information to the applicant in the Tribunal hearing. The applicant was told that the Tribunal considered the certificate to be valid and invited the applicant to provide any submissions on the validity of the certificate. The applicant did not provide any submissions about the validity of the certificate.
The Federal Circuit Court
The appellant was represented before the Federal Circuit Court. His application for judicial review sought relief in the nature of prerogative writs, but the gravamen of his claim was for a declaration that his application was an invalid application and a declaration that “the applicant can apply for another visa”. The thrust of this claim was that his visa application and the process associated therewith was vitiated by the fraud of the sponsor.
The appellant’s solicitor filed an affidavit annexing the reasons of the Tribunal. The Minister’s solicitors wrote to the appellant’s solicitor advising that the allegation of fraud made by the appellant was neither particularised nor supported by evidence.
After noting that the appellant had been put on notice that he would need to adduce evidence if he wished to pursue the allegation of fraud, the primary judge made an order limiting the use to which the assertions of fact in the Tribunal’s reasons could be put. After noting some conceptual difficulties with the appellant’s fraud case, the primary judge noted that there was no evidence before the Court to support the underlying factual basis of the claim and, in the circumstances, it should be dismissed.
The appellant sought to rely on the fraud in another way. He claimed that the Tribunal failed to consider the impact of fraud on the question of whether there were compelling, compassionate circumstances to waive the requirement in PIC 4020. The primary judge refused leave for the appellant to rely on this ground as it was raised late and without explanation as to why it was raised late. Furthermore, it was raised without notice and did not have, as the primary judge put it, “sufficient merits”.
The Appeal to this Court
The appellant represented himself before this Court. His notice of appeal contains five grounds and they, in essence, revert to an attack on the Tribunal’s reasons.
The appellant appeared in person at the hearing. He made brief oral submissions which did not, in substance, add to his notice of appeal.
Four of the five grounds were not raised before the Federal Circuit Court. It is too late for the appellant to complain about the Tribunal’s reliance on a certificate issued under s 375A of the Act. If that matter was to be raised, it should have been raised in the Federal Circuit Court where it might have been met with evidence from the Minister. I do not pause to decide if the appellant should be able to agitate the other three grounds in the circumstances. I have considered all of the grounds and I have reached the view that the Tribunal did not commit jurisdictional error.
Ground 1 alleges that the Tribunal failed to consider whether the appellant and his sponsor satisfied s 5F of the Act. That section contains a definition of the circumstances in which a person is the spouse of another person. This definition is relevant to another criterion in relation to a Partner visa (cl 100.221(2)(b) Schedule 2) and not to cl 100.222(a). Once the conclusion was reached that cl 100.222(a) was not satisfied, the Minister was required to refuse the appellant’s application for a visa (s 65(1)(b) of the Act). In any event, as the Minister pointed out, the Tribunal said that the evidence considered individually and as a whole, left it unsatisfied that the parties were ever in a spousal relationship and, most particularly, on 4 April 2016 when the information was given to the Department, and in December 2015 when the statutory declarations were written. Ground 1 must be rejected.
Ground 4, which is that the Tribunal failed to address whether his relationship with the sponsor satisfied the requirements of the Act, fails for the same reasons as Ground 1.
Ground 2 is to the effect that the Tribunal denied him procedural fairness in acting on an invalid certificate under s 375A of the Act. The particulars of this ground are that the Tribunal failed to disclose to the appellant the true nature of the certificate, the certificate is invalid and that the appellant was not given a proper opportunity to comment on it as it was first raised at the hearing. This ground must fail. There is no evidence in support of it. There is no reason to doubt the statements made by the Tribunal which I have set out above. Furthermore, as I have said, this is a matter which, if it is to be raised, should have been raised in the Court below where the Minister would have had the opportunity to advance evidence in response. The Minister gave an example. He would have adduced evidence that the certificate was disclosed to the appellant on 2 March 2017 after a request was made under s 362A of the Act.
Ground 3 is to the effect that the Tribunal misconstrued PIC 4020 and, in particular, it had asked itself the wrong question. The complaint was that the Tribunal had failed to reach the “positive state of satisfaction” required by PIC 4020. This ground must be rejected because, although in parts of its reasons the Tribunal did refer to being unsatisfied or not satisfied of particular matters, it did make the clear findings necessary to engage PIC 4020. I refer to what I have said above.
Ground 5 challenges the decision of the primary judge not to allow him to raise as a ground of judicial review a complaint that the Tribunal erred in failing to consider the fraud perpetrated on him as a compelling and compassionate circumstance. This ground must be rejected. The primary judge had a discretion in relation to this matter and there is nothing to indicate that his exercise of the discretion miscarried.
Conclusion
The appeal must be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 15 November 2018
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