Singh v Minister for Immigration and Border Protection

[2016] FCCA 1182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2016] FCCA 1182

Catchwords:
MIGRATION – Application for judicial review – partner visa – application dismissed.

Legislation:

Migration Regulations 1994 (Cth)

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant: MANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 501 of 2015

Judgment of: Judge McGuire

Hearing date: 16 May 2016

Date of Last Submission: 16 May 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the First Respondent: Mr Smyth

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the name of the second respondent be amended to read Administrative Appeals Tribunal.

2. That the application of the judicial review be dismissed.

3. That the applicant pay the costs of the first respondent set in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 501 of 2015

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a determination of the Migration Review Tribunal (as it then was) (“the tribunal”) made 23 February 2015, affirming a decision of the Minister’s delegate to refuse the applicant the grant of a Partner (Temporary) (Class UK) Visa (“the visa”).

2. The applicant was sponsored by Daniella Grasso. The applicant provided the tribunal with a copy of a marriage certificate evidencing a marriage on 15 July 2013. Mr Singh applied for a visa provided by a clause which is CL1214C of schedule 1 of the Migration Regulations 1994; subclass 820 by clause CL820 towards a Partner Visa pursuant to subclass 801.  Mr Singh’s application required assessment under clause 820.211(2) of the Regulations.

3. For these purposes, the definition of “spouse” is provided in S5F of the Act as follows:

Spouse

i)         For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the two persons are in a married relationship.

ii)        For the purposes of subsection (1), persons are in a married relationship if:

a)     They are married to each other under a marriage that                  is valid for the purpose 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.

iii)       The Regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (ii)(a), (b), (c) and (d) exist.  The Regulations may make different provisions in relation to the determination for different purposes whether one or more of those conditions exist.

Background

1. The applicant is from India.  In August 2013, he made an application for the 820 visa.  Mr Singh was sponsored by Daniella Grasso who was an Australian citizen.  Mr Singh enclosed corroborative supportive statements from two persons. 

2. Mr Singh’s application disclosed that he had been divorced from a previous marriage and a copy of his divorce order was provided.

3. Mr Singh supported his application by a marriage certificate as evidence of his marriage to Daniella Grasso on 15 July 2013, such registered with the Victorian Registrar of Births, Deaths and Marriages on 31 July 2013. 

4. On 20 August 2013 the department gave notice to Mr Singh that that there was evidence that Daniella Grasso had married and sponsored another person and sought comment from the applicant in respect of the definition of “spouse” set out above in these reasons.

5. On 23 November 2013 the department received a letter signed by Ms Grasso denying that she had sponsored any other person and confirming her happy marriage to Mr Singh.

6. On 19 December 2013 the Minister’s delegate refused the visa. 

7. On 13 January 2014 the applicant sought a review of the delegate’s decision.

8. On 31 October 2014 the Tribunal invited Mr Singh to appear before it at a hearing scheduled for 13 January 2015. 

9. Prior to its scheduled hearing and on 15 December 2014, the Tribunal wrote to the applicant inviting comment or response to certain information including that his sponsor/wife was married to another person and that that marriage took place on 17 October 2013.  That information asserted that Daniella Grasso had sponsored the other person for the same class of visa.  That letter of invitation set out the requirements of S5F of the Act.  The Tribunal sought a response by 7 January 2015.  No response was forthcoming and, hence, Mr Singh lost his entitlement to a hearing before the Tribunal and a letter of 9 January 2015 was sent by email to the applicant advising of the hearing cancellation accordingly, noting that “the Tribunal will make a decision on the information before it”. This process took place via the provisions of the ss 359A and 359(2) of the Act enlivening ss 359C and 360 of the Act, whereby the Tribunal had no power to permit Mr Singh to appear.[1]

   [1] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [25] – [32].

10. Consequently, I accept the submissions of counsel for the first respondent that the Tribunal was required to proceed without further oral information or comments from the applicant.  The Tribunal did, however, have before it a bundle of documents provided by the applicant including a letter of 11 January 2015 from Mr Singh claiming that Danielle Grasso’s identify had been stolen and used in another person’s visa application.  Further documents were provided under cover of a letter of 12 January 2015. 

The Tribunal’s Determination

1. On 23 February 2015 the tribunal notified the applicant of its decision to affirm the delegate’s decision. 

2. The Tribunal, correctly, at [19] identified the primary issue for its consideration, specifically the definition of “spouse” as defined at s5F of the Act.

3. The Tribunal considered the evidence provided by Mr Singh including evidence favourable to the application [27-29].

4. At [32] and following, the Tribunal considered the nature of the commitment of the applicant and his spouse to each other.  At [34] the tribunal’s reasons disclosed: 

   There is indisputable evidence that the sponsor married another person in a ceremony conducted on 17 October 2013 and that she is sponsoring this person in another partner visa application.  As discussed below, the tribunal is satisfied that the sponsor is the same person on each application.

5. At [35] the reasons state:

   The decision record states that the sponsor was also in a married relationship with another person and she was sponsoring this person for a partner visa.  The Department was in possession of another marriage certificate as evidence of the sponsor’s marriage to this person.  The Tribunal notes that on 7 November 2013, this issue was raised by the delegate in assessing the application at the primary stage.  The sponsor wrote to the Department on 23 November 2013 denying the application and stated that she and the applicant are legally married and living at an address in Springvale.  The delegate considered the response of the sponsor but did not consider the response addressed the concerns that had been raised.

6. The Tribunal noted that it had access to relevant Department files [36] noting identical copies of the sponsor’s birth certificate and each file containing a marriage certificate indicating marriages on 15 July 2013 and 17 October 2013.

7. The Tribunal gave some weight to the duration of the relationship (26 months) at [32]. Nevertheless, the Tribunal noted unresolved ambiguities in the sponsor’s personal particulars and concluded at [38]:

   The Tribunal reasonably concludes that the sponsor is in a married relationship with two different people at the same time.  The Tribunal reasonably concludes that the person named as the sponsor in this and the other partner visa application before the Department... is the same person.

8. And at [39] the tribunal’s reasons state:

   The Tribunal is of the view that the actions of the sponsor are serious and that she has more than likely committed the serious offences of perjury and bigamy.  This may be a matter for the relevant authorities and not a matter for the tribunal.

9. The Tribunal found that the applicant did not meet the requirements of clause 820.211 of the regulations being a mandatory criterion for the grant of the visa.

Application to this Court

1. The application sets out four grounds of complaint as follows:

   (1) I submit that my visa application for the partner visa has been decided unfairly and my visa should not have been refused.  (2) I am in a genuine relationship with my wife and all the supporting documents were provided to the Member and Immigration.  And I strongly believe that I should have been granted the partner visa.  MRT sent me the correspondence on the wrong address and I couldn’t get that on time, but despite of that, all the supporting documents were provided to the MRT.  (3) The decision made by the tribunal member and Immigration Department Officials is made contrary to Natural Justice. (4) The Tribunal and Department have not applied procedural fairness to the applicant’s circumstances.

2. The applicant appeared in person before this Court.  He had not filed written submissions pursuant to the registrar’s directions.  He did, however, affirm an affidavit on 26 April 2016 which was filed with the Court and leave for this Court to read this affidavit was not opposed by counsel for the first respondent. 

3. Counsel for the first respondent provided comprehensive written submissions and his oral submissions attempted to address each of the applicant’s various complaints as could be understood from his documents.  I will follow the same course.  

4. The applicant appeared before this court with the assistance of an interpreter and was invited to make oral submissions in support of his application which he declined.  He was then invited to make oral responses to each of the submissions of counsel for the first respondent. 

Ground 1

1. The applicant here says that his visa has been “decided unfairly” and should not have been refused. 

2. The applicant here simply quarrels with the merits of the tribunal’s decision.  It is not the role of this court to provide yet a further opportunity for a hearing on the merits of the visa application.  There is no merit in this ground. 

Ground 2

1. Counsel for the first respondent identifies four sub-arguments under this ground of the application:

   i)The applicant says that he was in a genuine relationship with Daniella Grosso.  This, again, is a statement consistent only with seeking a merits review and does not set out any jurisdictional error in the Tribunal;

   ii)The applicant says that he provided documents to the Tribunal for their consideration.  It is clear that he did so and the Tribunal’s reasons make it abundantly clear that they considered and weighed the evidentiary material provided by the applicant.  That the Tribunal did not ultimately make findings favourable to the applicant on the basis of this material is yet again to cavil with the merits of the tribunal’s decision.  There is no merit to this ground;

   iii)The applicant says that he “strongly believes” that he should have been granted the visa.  The applicant’s own “beliefs” have no relevance as to whether or not the Tribunal fell into jurisdictional error;

   iv)The applicant says that the Tribunal sent him correspondence but to the wrong address. The applicant had provided an address for service. Correspondence, including his invitation to the hearing, were forwarded to that address.  There was no evidence of any later or amended address for service.  It is the responsibility of an applicant to advise the department of any change in contact addresses and otherwise presumptions of service are clear under the legislation.  There is no merit to this ground of complaint.

Grounds 3 and 4

1. The applicant complains that he was denied natural justice and that the Tribunal did not apply procedural fairness “to the applicant’s circumstances”.  I accept that at common law the concepts of natural justice and procedural fairness can be read as synonymous and that they can, in this matter, be dealt with together. 

2. Essentially, a Tribunal is to provide a fair hearing and present as an impartial decision-maker.  These reasons set out above the antecedents to the tribunal proceeding to its determination in the absence of the applicant.  S 357A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters before the Tribunal.  The applicant was invited to appear before the Tribunal.  The Tribunal gave the applicant particulars of the information it considered would be, subject to his comment or response, relevant to its determination.  The failure of the applicant to respond enlivened the Hasran provisions.  Again, it is clear that the Tribunal engaged and considered the documentary evidence provided by the applicant.  I am not satisfied, therefore, that this applicant has been denied natural justice or procedural fairness and find no merit to these grounds of complaint.

The Applicant’s Affidavit of 26 April 2016

1. This affidavit essentially comprises firstly of a letter to the court dated 15 April 2016, annexed to the affidavit and which asks for the opportunity to provide more documents in respect of “the final hearing listed before the Judge for decision not to grant Partner Visa to visa applicant”, followed by a narrative as to the applicant’s history including of his marriage to Daniella Grosso.  Finally, the affidavit annexes numerous documents which the applicant himself agrees are copies of the documents provided to the Tribunal and some further documents which he provides in support of his application. 

2. On any reading, the affidavit itself pleas for a further hearing on the merits.  The affidavit and its annexures do not explicitly or implicitly raise any argument as to jurisdictional error in the tribunal over and above those dealt with above, perhaps with the exception of the applicant deflecting blame on his “ex-migration agent” for his failure to have attended at the hearing.  At [4] of his affidavit, the applicant deposes:

   Review applicant was invited to provide oral evidence before the tribunal on 13 January 2015.  Applicant was misguided by his ex-migration agent that review applicant do not have to attend hearing.  Review applicant provided all the required information to his migration agent and, however, migration agent chose not to respond to the hearing invitation and failed to provide any requested information to the tribunal Member.  Furthermore, address provided for correspondence (meant to be Migration Agent address) was Migration Agent residential address and all communication from Tribunal has gone to listed address and Review Applicant has never received it.

3. Firstly, the issue of the presumptions of service that arise from an address for service are dealt with above. 

4. It is apparent that the applicant makes an allegation of either poor or negligent advice from his agent. The tenor of his application does not suggest fraud on that agent’s part. Put another way, the applicant’s material does not particularise fraud on the part of his migration agent.  I am of the view that the factual platform here sits consistently with the comments of the High Court in SZFDE v Minister for Immigration and Citizenship[2] where their Honours say:

   The significance of the outcome in this appeal should not be misunderstood.  The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss425 and 426A.  In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made [79]. 

   [2] (2007) 232 CLR 189 at [53]

Conclusion

1. I find no merit in any of the grounds explicit or implied in the applicant’s application or affidavit.  Consequently, the application will be dismissed with an order for costs in favour of the first respondent. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 25 May 2016