Singh v Minister for Immigration & Anor
[2015] FCCA 1196
•27 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1196 |
| Catchwords: MIGRATION – Application for Partner (Temporary) (Class UK) visa – where tribunal asked to waive compliance with criteria 3001, 3003 and 3004 in Schedule 3 to the Migrations Regulations 1994 – where tribunal determined that there were no compelling reasons to waive compliance – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5F(3) |
| Babicci v The Ministerfor Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 |
| Applicant: | JASTINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1082 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 27 April 2015 |
| Date of Last Submission: | 27 April 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 27 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P.A. Travers |
| Solicitors for the Applicant: | Chand Lawyers |
| Counsel for the First Respondent: | Mr B. McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed 3 December 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1082 of 2014
| JASTINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
ex tempore
On 30 May, 2013 the applicant applied for Partner (Temporary) (Class UK) visa. On 24 June, 2013 a delegate of the first respondent refused to grant the visa and soon thereafter, on 2 July, 2013 the applicant applied to the second respondent for a review of the delegate’s decision. In November, 2014 the tribunal affirmed the delegate’s decision to refuse to grant the visa.
This application is an application to review the decision of the tribunal on the basis that the tribunal committed a jurisdictional error in determining to refuse to overturn the delegate’s decision.
The application specifies two grounds of review. The first is in the following terms.
i)The tribunal engaged in conduct which amounted to jurisdictional error in the following respects:
a.The tribunal fell into jurisdictional error by failing to properly consider all of the evidence and/or by considering or giving inappropriate weight to irrelevant evidence;
b.The tribunal erred in its consideration of the definition of spouse;
c.The tribunal fell into jurisdictional error by erroneously construing the schedule 3 criteria.
The written submissions delivered on behalf of the applicant did not address in terms that ground and, having regard to some grounds which I will soon set out, the applicant has determined to abandon ground 1.
The decision to abandon ground 1 is understandable in the circumstances. It adds nothing to the argument in this case. Ground 1a. is formulaic. Grounds 1b. and 1c. add a little more specificity, but no more specificity than that which is already encapsulated in ground 2 of the application.
Ground 2 is in the following terms:
The tribunal erred in considering whether the applicant satisfied the requirements of clause 820.211 of schedule 2 of the Migration Regulations. In particular:
(a)the tribunal failed to properly consider the evidence of the applicant’s mother-in-law; and
(b)The tribunal failed to properly consider the evidence of the applicant’s spouse.
As the case has developed in the written submissions delivered for the applicant and for the first respondent, it seems clear enough that the issue that informs the outcome in this case is whether the tribunal erred in not making a finding as to whether the relationship between the applicant and his wife was a genuine relationship and thereby the tribunal failed to take into account the genuineness of that relationship for the purposes of determining whether the applicant satisfied clause 820.211(2)(d)(ii) of schedule 2 to the Regulations.
The facts of the matter are not in dispute. They are well set out in both the written submissions delivered for the applicant and for the first respondent and, except where necessary to do so, I do not intend to recite them verbatim.
The tribunal’s decision starts out with a consideration of the claims and the evidence before the tribunal. The tribunal properly informed itself that s.5F of the Migration Act1958 (Cth) defined the term spouse and set out what was provided in that section. The tribunal also referred to regulation 1.15A of the Migration Regulations 1994 (Cth) and the additional requirements that it imposes for the determination of “spouse” for the purposes of s.5F (3) of the Act.
The tribunal also recorded, and it is not in dispute, that it was relevant for the applicant to satisfy those parts of cl.820 of Schedule 2 to the Regulations which were relevant.
Clause 820.211(2)(d)(ii) required that the applicant satisfy Schedule 3 criteria 3001, 3003 and 3004 unless the Minister was satisfied that there were compelling reasons for not applying those criteria. Criteria 3001, 3003 and 3004 were appended to the tribunal’s decision. Those criteria required that the application, to be validly made, must satisfied certain matters. It is not necessary to delve into the detail of why the application in this case did not satisfy those criteria. What it is relevant to record is that because the applicant could not satisfy those criteria, the tribunal and the first respondent needed to consider whether there were compelling reasons for not applying those criteria.
The tribunal recorded in its reasons that the word “compelling” is not defined in either the Act or the Regulations. It had regard to Babicci v The Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 and the Full Court’s suggestion there that:
There are shades of differences between various dictionary definitions of “compelling”, but on any view of the meaning of that word, the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in regulation 1.20J(1) should be waived.
The tribunal recorded that the comments of the Full Court in Babicci were made in a slightly different context, but, nonetheless, provided guidance as to what needed to be undertaken and found in the case before it. The tribunal also referred to MZYPZ v The Minister (2012) FCA 478, a decision of Bromberg J raised in argument with me, where his Honour traversed what was required when the tribunal was to determine whether there were compelling circumstances in the context which is presently under consideration. Relevantly in that decision, his Honour says this at paragraph 10 of that decision:
That subclause [his Honour has just referred to the relevant visa criteria 820.211(2)(d)(ii)] is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria. Paduano v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at 39, Crennan J. The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria. Babicci v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at 24, Tamberlin, Conti and Jacobson JJ.
In paragraph 12, his Honour said:
In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
Later, after considering statements from the High Court in Minister for Immigration and Multicultural Affairs Ex parte Applicant S20 of 2002 and a statement by Dixon CJ in Avon Downs Pty Ltd v The Federal Commissioner for Taxation (1949) 78 CLR 353 at 360, and a subsequent statement by the High Court referring to another statement in R v the Australian Stevedoring Industry Board and Ex parte Melbourne Stevedoring Company (1953) 88 CLR 100, his Honour said this:
What each of those statements of principle show is that if jurisdictional error is to be found, it must be found in the process by which a state of satisfaction is reached rather than in the correctness of the opinion arrived at. The challenge raised by the appellant is that the tribunal failed to consider a matter that it was bound to consider. That it is a challenge to the decision-making process and raises for consideration the possibility of jurisdictional error of the kind referred to by Dixon CJ in the passage from Avon Downs set out above at paragraph 14.
The relevant question raised by this appeal is has the decision-maker excluded from consideration some factor which should affect his determination. That, in turn, involves consideration of the nature of the fact-finding process required by clause 820.211(2)(d)(ii) in order for the tribunal to have reached the requisite state of satisfaction. In my view, the process required by the clause entails a duty to consider whether compelling reasons exist. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the tribunal was bound to take into account. To comply with the duty conferred, the tribunal had to engage in “an active intellectual process” in which the prescribed circumstance “receives the tribunal’s genuine consideration.”
Thereafter his Honour set out some authorities.
The issue in this case is not dissimilar to the issue in MZYPZ. As both parties point out in their written submissions, the tribunal’s reasons for decision are taken up, in large measure, with a consideration of the evidence before the tribunal which went to the nature and extent of the relationship between the applicant and his sponsor. At paragraph 61 of the reasons, the tribunal commences its consideration of whether the parties were in a spousal defacto relationship for the purposes of the Act. At 64, the tribunal said this:
Accordingly, the tribunal has serious concerns about whether the relationship between the applicant and the sponsor was genuine at the time of the application in May 2013. However, for the reasons set out below, does not consider it necessary to determine that matter, because the applicant does not meet the requirements of clause 820.211(2)(d)(ii).
Thus, the tribunal deliberately did not make a determination about whether the relationship between the applicant and his sponsor was genuine. The tribunal had serious concerns about that, but no finding was made one way or the other. The first question that arises then, is whether the tribunal was bound to make a finding about that matter. Although it is now conceded by the applicant that the tribunal was not bound to make that finding, even if the concession was not made, it seems to me that the tribunal was not bound to make such a finding at the stage of the process that it was then at. Whether the relationship is genuine or not needs to be determined, but it only needs to be determined if the tribunal has found that it has a valid application for a visa before it.
What it had before it was an application for the relevant visa that had been made outside of the relevant time period limited for such an application. There could be no compliance with criteria 3001, 3003 and 3004 and the tribunal needed first to determine whether there were compelling circumstances to waive the necessity to comply with those requirements. It had not reached that part in the process where a determination about the genuineness of the relationship was necessary. It was not, at that stage of the process, obliged to make such a finding.
That is not to say, however, that the genuineness of the relationship was not a factor which might have been relevant to a determination about whether compelling circumstances existed for the purposes of clause 820.211(2)(d)(ii).
What circumstances and facts were relevant to the consideration of whether there were compelling circumstances was a matter entirely for the tribunal. It was part of the tribunal’s function to make a finding and a determination about what was relevant and what was not, and then to consider those matters to determine whether it was satisfied that compelling circumstances existed.
In this case the tribunal commenced its consideration of whether compelling circumstances existed at paragraph 68 of the reasons. The tribunal reminded itself again in paragraph 69 of Bromberg J’s decision in MZYPZ, and also referred to a decision of Wilcox J. At paragraph 71 the tribunal recorded this:
71. As noted above, the evidence before the tribunal is that the applicant and Ms Layt lived together for only 16 days after their marriage before the application was lodged. The applicant told the tribunal that they had been out together only four times before marrying, and when asked for his view as to why he should not have been required to leave Australia to apply for a partner visa, he simply said that he was married and did not want to leave his wife. The tribunal the tribunal notes that the applicant himself did not refer to his relationship with Ms Layt’s son as relevant to this issue, either at the hearing or subsequently, unless his reference to “family” in his written statement was intended to encompass the son.
72. In any event, the tribunal does not accept, notwithstanding Ms Layt’s assertion to the contrary that at the time of application the applicant would have had a strong bond with her then nine month old son, such that this factor should be regarded as a compelling reason not to apply the schedule 3 criteria. The tribunal notes that were it to accept the reasons advanced by the applicant and Ms Layt as to why he should not have been required to leave, the mere facts of marriage and cohabitation would be sufficient to enliven the waiver to the schedule 3 criteria. The tribunal is satisfied that this is neither the intention nor a logical reading of the relevant provisions of the regulations.
The reasons referred to in paragraph 72 of the tribunal’s decision are the reasons set out in paragraph 71 given by the applicant as to why he should not have been required to leave Australia to apply for a partner visa. It is not suggested in argument that the tribunal misunderstood any of those reasons. He stated that he was married and did not want to leave his wife. As the tribunal suggests, the facts of marriage and cohabitation of themselves are not sufficient to enliven the waiver set out in clause 820.211 (2)(d)(ii). I accept the argument for the first respondent that were that so, it is difficult to see the work that might be done by the requirement to satisfy compelling circumstances in cases where parties are married and have lived, or are living together.
Again, however, that is not to say that a finding of genuineness was not, or could not be relevant to a determination of whether compelling circumstances existed. For example, in a case where the facts might have established and might have been found by the tribunal to show that parties had been married, had lived together, and that the visa applicant spouse had a strong relationship with children either of that marriage or of the sponsor, then the genuineness of the relationship might demonstrate compelling circumstances; circumstances where a relationship was not genuine might not demonstrate the necessary compulsion to engage the waiver. It could not be said in my view that the genuineness of the relationship could never be relevant.
The tribunal here, however, determined that it was not relevant. Not expressly, but certainly by implication. The tribunal set out, apparently without error, the reasons expressed by the applicant for not having to go offshore to apply for his visa. That the tribunal determined not to come to a conclusion about the genuine nature of the relationship between the applicant and his spouse indicates, I accept, that the tribunal determined that the genuineness of the relationship was not relevant to a consideration of compelling circumstances. Put another way, even though the tribunal might have concluded that the relationship was genuine, in the circumstances before it, it seems the tribunal determined that the fact that the relationship was genuine added nothing to the determination that the circumstances were not compelling so as to enliven the waiver in clause 820.211 (2)(d)(ii).
The applicant submits that the tribunal erred in not making a finding as to whether the relationship was genuine. For the reasons that I have just expressed, in my view the tribunal did not err. It was something that was open to the tribunal to do if it thought it was relevant to do so. But having regard to the tribunal’s reason, the conclusion that is open is that the tribunal did not think that it was relevant. That is a matter entirely for the tribunal; it was not a mandatory consideration. There is no error demonstrated in the tribunal’s process in that regard.
The applicant argues that the tribunal’s determination of whether there were compelling circumstances was flawed because the tribunal’s reasoning, namely that the applicant and his wife only lived together for 16 days after the marriage before the application was lodged was insufficient. The tribunal, it is said, paid no attention to the evidence that the parties had spent time together in the “many months before their wedding” during which the applicant and his wife apparently courted and were engaged. It is suggested in argument that that period would have been formative in establishing a relationship between the applicant and his stepson, a nine-month-old child, and there was no evidence before the tribunal that because there was not any other significant male in that child’s life the applicant would have filled the role of a father figure to that child during that time.
The evidence considered by the tribunal consisted of some evidence apparently accepted by the tribunal that the parties had been out together four times before they married. There was no evidence before the tribunal that there was any relationship of any particular quality between the nine-month-old stepson and the applicant. The tribunal considered the sponsor’s assertion that at the time of the application the applicant would have had a strong bond with her then nine-month-old son, but for the reasons expressed at paragraph 72 the tribunal disregarded that assertion. It was an assertion unsupported by any other evidence in any event. There was no error in my view in the way in which the tribunal dealt with the evidence concerning this issue.
The applicant further argues that the applicant’s sponsor and her son relied completely on the applicant after the date of their marriage, financially in particular. It was said that had the applicant been required to leave Australia to make his visa application the applicant would not have been able to work and he would therefore be prevented from providing for his family. That would have had serious consequences for the applicant’s wife and her son. As the first respondent points out, however, that was not a matter raised before the tribunal. There was no assertion in any real sense that that was of significance. It was not a claim made by the applicant. There was therefore no error by the tribunal in its process in failing to deal with such a claim.
Finally, it is said that whilst the tribunal noted inconsistencies between the evidence of the applicant and the applicant’s wife and mother-in-law, the tribunal should have preferred, and therefore relied on the evidence of the applicant’s wife and mother-in-law rather than that of the applicant. I accept the first respondent’s submission that that is nothing more than an argument about the merits of the tribunal’s decision and an impermissible attempt to interfere with the tribunal’s fact-finding function.
In my view, the application for review demonstrates no jurisdictional error on the part of the applicant, and the application in these proceedings filed on 4 December, 2014 must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 27 April, 2015.
Associate:
Date: 14 May 2015
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