Singh v Minister for Immigration & Anor
[2014] FCCA 960
•6 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 960 |
| Catchwords: PRACTICE AND PROCEDURE – Whether Registrar’s order of dismissal to be set aside – factors for consideration. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2) Migration Act 1958 (Cth), s.5F(2) Migration Regulations 1994 (Cth), Schedule 2, cl.820.211 |
| Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 Alvaro v Legalwest Pty Ltd [2013] FCCA 1799 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 Nukala v Minister for Immigration & Anor [2013] FCCA 2322 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 |
| Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2043 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 6 May 2014 |
| Date of Last Submission: | 6 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First and Second Respondents: | Mr Hutton |
| Solicitors for the First and Second Respondents: | Australian Government Solicitor |
ORDERS
The application in a case be dismissed.
The applicant pay the Minister’s costs in the sum of $1050 by 6 June 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2043 of 2013
| GAGANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The Court has before it an application in a case filed by the applicant on 14 February 2014. The substantive application in the matter was filed on 26 November 2013, and the applicant, Mr Singh, applied to this Court for judicial review of a decision of the Migration Review Tribunal of 1 November 2013 and an order that the Migration Review Tribunal decision be quashed.
The grounds of the application, as set out in the substantive application, are as follows:
1. S.477, Judicial review, can be lodged in 35 days after tribunal review has been finalised
2. I am not happy with tribunal decision, applying for judicial review for legitimate decision
3. I do have exceptional circumstances beyond the application lodgement previously
4.My spouse relationship is strong and this is against the human rights
5.Never have intention to cheat or do have intention to submit the foul documents to Immigration and legal authorities of Australia
The substantive application was supported by an affidavit, the only content of which was two paragraphs which said as follows:
1.I am not happy with Tribunal Decision, Applying for Judicial review for legitimate Decision.
2.I have exceptional circumstances beyond my control which made me apply to the onshore application.
Annexed to the affidavit was the Migration Review Tribunal decision. A response was filed by the first respondent (“the Minister”) and that response requested that the application be dismissed with costs on the basis that the Migration Review Tribunal decision exhibited no jurisdictional error.
On 5 February 2014 a Registrar of this Court made an order as follows:
(1)Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001, the application be dismissed
(2)The applicant pay the first respondent’s costs, fixed in the sum of $1,331.00
Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that where an applicant fails to attend a hearing, including a first court date, which the hearing before the Registrar was, an application may be dismissed. The Registrar on 5 February 2014 exercised the discretion available under that rule.
On 14 February 2014 the applicant filed the application in a case. The orders sought in the application in case are as follows:
1.Migration application allowed
2.Otherwise dismiss the appeal
3.No order for costs
There was an affidavit filed in support of the application in a case which reads as follows.
1.I’m not happy with Tribunal decision, Applying for Judicial review for legitimate decision
2I do have exceptional circumstances beyond the application lodgement previously
(3) There are similar case law regulation in Federal Court
The Minister generously, no doubt in his role as a model litigant, has interpreted the application in a case, and the affidavit filed in support of it, as an application to reinstate the applicant’s case and to have the Registrar’s order of 5 February 2014 dismissed. Currently, if it is to be construed in this way, it is, effectively, an application to set aside the Registrar’s order, under r.16.05(2)(a) of the FCC Rules, which provides the Court with a discretionary power to vary or set aside an order made in the absence of the party, and the Court will treat the application in the case as such an application.
The criteria for setting aside an order made in the absence of a party are set out in various judgments of the Federal Court and this Court. See: Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250; Nukala v Minister for Immigration & Anor [2013] FCCA 2322; and Alvaro v Legalwest Pty Ltd [2013] FCCA 1799. The criteria to set aside an order made in the absence of a party are as follows:
a)that there is an adequate reason for the non-appearance;
b)that there is no delay in making the application to set aside;
c)whether the party, in whose favour orders have been made, would be prejudiced by a new hearing in any respect which could not be adequately compensated for by a suitable award of costs or the giving of security for costs; and
d)most importantly in this case, that there is an arguable case on the merits of the substantive application.
On the question of an adequate reason for non‑appearance, no reason was given by the applicant for his failure to appear on 5 February 2014 in the affidavit filed in support of the application in a case. Today, in reply, a submission was made that the applicant had “lost the paper”, and that at the time it was received or, I infer, discovered, “the time had already past”. That ignores the fact that the time for the matter is put on the application in a case by the Registry, and in any event, it is curious that if those were the circumstances, they were not deposed to in an affidavit in support of the application in a case, bearing in mind that it would have been evident that that was a material factor.
In any event, whether or not there is an acceptable reason for non‑appearance does not overcome other issues, which the Court will deal with, and, in particular, whether there is an arguable case on the merits. Those other issues are issues which would preclude the application in a case being granted.
With respect to delay, the application in a case was made nine days after the orders of 5 February 2014 were made, and allowing time for postal delivery, consideration and preparation of the application in a case and affidavits, scant and inadequate as they may be, and bearing in mind that the applicant has English as a second language, the Court is of the view that nine days does not constitute a delay in the circumstances of this case.
With respect to prejudice, the Minister does not allege prejudice, but it might be seen to be that there is some prejudice by reason of the Minister being entitled to take the view that as at the time the Registrar made the order, the litigation was at an end, but that view would have been short lived, given that the application in a case was filed shortly thereafter, and the Minister has adopted a generous interpretation of the intent of the application in a case. So, to the extent that there is prejudice, it is slight and insufficient in the exercise of the Court’s discretion to weigh against the applicant in the circumstances of this case.
Turning then to the question of whether or not there was an arguable case on the merits of the substantive application, and in order to deal with that, it is necessary to deal in some detail with what the Migration Review Tribunal actually decided. The Migration Review Tribunal decision noted, firstly, that the application was one which came to the Tribunal following a decision of a delegate, and the Tribunal noted the statutory basis for the application under cl.820.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”). The Migration Review Tribunal noted that evidence had been taken at the hearing before the Migration Review Tribunal, and that four witnesses had been called on behalf of the applicant, and that the applicant was represented and arguments were presented by the registered migration agent who appeared on behalf of the applicant: see paragraphs 1-5 of the Migration Review Tribunal decision.
The Migration Review Tribunal then turned to consider the claims and evidence that were presented to it, and in so doing, firstly, considered and set out the statutory definition of “spouse” and all of its elements: see paragraphs 8-9 of the Migration Review Tribunal decision. Secondly, the Migration Review Tribunal considered whether the parties were validly married as required by s.5F(2)(a) of the Migration Act 1958 (Cth) (“Migration Act”) – see paragraph 10 of the Migration Review Tribunal decision – and considered whether it was satisfied that as at the time of the application there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether the relationship was genuine and continuing, and whether the couple lived together or did not live separately and apart on a permanent basis, those being factors set out in section 5F(2)(a)-(d) of the Migration Act. And in forming an opinion, the Migration Review Tribunal indicated that it would have regard to all of the circumstances of the relationship, including the evidence, the financial and social aspects, and the nature of the parties’ household and their commitment to each other: see paragraph 11 of the Migration Review Tribunal decision.
The Migration Review Tribunal decision thereafter dealt in detail with the ages of the applicant and the spouse, Ms Allas, and the circumstances in which they had met – at paragraph 12 of the Migration Review Tribunal decision – and then dealt with the circumstances of the marriage proposal by the applicant and the wedding ceremony. Paragraph 13 of the Migration Review Tribunal decision dealt with the circumstances of the applicant and Ms Allas not living together once they had been married, their maintenance of two separate households by the 21 year old applicant and the 50 year old Ms Allas, and the circumstances of Ms Allas’ teenage son, the visitation arrangements between the applicant and Ms Allas, and the failure of Ms Allas to tell her teenage son of the marriage at the time that it occurred.
The Migration Review Tribunal also looked at inconsistencies between the disclosure in the application to the Migration Review Tribunal, and inconsistencies between that and what was put to the delegate, and also what had been put to Centrelink concerning the residences and living arrangements of the applicant and Ms Allas, including representations by the applicant that they purportedly lived together with Ms Allas’ teenage son when they did not – see paragraphs 14-19 of the Migration Review Tribunal decision.
That led the Migration Review Tribunal to conclude, at paragraph 20 of the Migration Review Tribunal decision, that the applicant and Ms Allas had maintained separate households since their wedding in July 2011, and continued to maintain separate households as of the date of hearing. The Tribunal did not accept that they had maintained separate residences due to the welfare of Ms Allas’ teenage son, and indicated that there was no evidence of a plan to move in together, which was alleged by the applicant and Ms Allas.
The Migration Review Tribunal went on to examine the failure of Ms Allas to disclose the marriage to her teenage son, her parents and her siblings, and dealt with the applicant only having met the teenage son of Ms Allas shortly before the Migration Review Tribunal hearing, and the fact that Ms Allas had some limited communication with the applicant’s parents, who do not speak English, and a sister who does speak English, in India: see paragraphs 21-22 of the Migration Review Tribunal decision.
The Tribunal also examined what were said to be photos of the wedding, which showed exclusively male guests, and had regard to the fact that Ms Allas had only told two friends of the marriage, and also to various statutory declarations from friends of the applicant and Ms Allas as to their relationship: see paragraphs 23-26 of the Migration Review Tribunal decision.
The Migration Review Tribunal dealt with the couple’s financial arrangements and indicated that they demonstrated that the financial arrangements between them were separate, and that they maintained separate bank accounts, save for one joint bank account, which had been established two months before the Migration Review Tribunal hearing by the applicant, into which his pay was deposited, but in respect of which Ms Allas made no contribution and maintained her own separate arrangements and bank accounts: see paragraph 26 of the Migration Review Tribunal decision.
The applicant said that he had not worked, except for a short period since arrival in Australia in 2008, and had been supported by relatives and some small financial assistance by Ms Allas with respect to food. Having heard the evidence with respect to the bank accounts of Ms Allas, her income details, and Centrelink arrangements under which the applicant was treated as a single person, the Migration Review Tribunal expressed the view that it was not satisfied that the applicant and Ms Allas were financially co-dependent, or that they were sharing their financial resources: see paragraphs 27-28 of the Migration Review Tribunal decision. The Migration Review Tribunal went on to express the view that the possibility that the applicant and Ms Allas might purchase property together was speculative, at best: see paragraph 29 of the Migration Review Tribunal decision.
The Migration Review Tribunal also examined the couple’s relationship in regard to their 29 year age difference and had regard to the issue of whether or not they might adopt children, which had been raised by the applicant and Ms Allas: see paragraphs 30-31 of the Migration Review Tribunal decision. The Migration Review Tribunal had particular regard to the migration situation of the applicant at the time the visa application was made. That is, that the applicant had arrived on a student visa in 2008, had been involved in a criminal case and his visa had expired in 2011, and from 13 April 2011 to 29 June 2011 was on a criminal justice visa, and that he was granted a bridging visa on 6 July 2011 for less than one month, the conditions of which were that he leave Australia, and that he show the Department that he had purchased an airline ticket, which he did not do, but instead, produced to the Department a marriage certificate in relation to the ceremony on 11 July 2011: see paragraph 33 of the Migration Review Tribunal decision.
The Migration Review Tribunal weighed all of the above factors and came to a considered decision that it was not satisfied that there was a genuine and continuing married relationship at the time of the application. It weighed the factors for and against the existence of that relationship and concluded that the factors against, which included the rapidity with which the marriage was conceived and concluded, the fact that the migration agent chose the celebrant, the celebrant chose the wedding location, and the failure of Ms Allas to inform her parents, siblings and son of the marriage, and the fact that there were separate financial arrangements, as well as the applicant’s migration and visa arrangements and the circumstances in which they came to be married, satisfied it that there was not a genuine and continuing marital relationship: see paragraphs 35-39 of the Migration Review Tribunal decision.
The Migration Review Tribunal, in coming to that conclusion, expressly had regard to the relevant statutory definition of “spouse” – see paragraph 37 of the Migration Review Tribunal decision – and had regard to whether or not the applicant met the requirements of cl.820.211(2) of Schedule 2 of the Migration Regulations, and concluded that it was not satisfied that those requirements were met. The Migration Review Tribunal, therefore, affirmed the decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
In summary, the Migration Review Tribunal heard and considered all the relevant factual material and applied the relevant statutory criteria to that material to arrive at its decision. In submissions today, the applicant indicated to the Court that he did not understand why the Migration Review Tribunal had decided as it did on the facts before it, and the applicant, essentially, took issue with the factual conclusions drawn by the Migration Review Tribunal and submitted to the Court that the applicant and Ms Allas were in a genuine spousal relationship. The applicant did not point to any indicators of jurisdictional error by the Migration Review Tribunal.
The grounds of the substantive and dismissed application have already been set out by the Court. It is necessary to examine those grounds to determine whether the applicant has an arguable case on the merits. Before doing so, it is necessary to note that a the Migration Review Tribunal decision is only liable to be set aside upon review if it involves jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at paras.76-77 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by an administrative tribunal, such as the Migration Review Tribunal, will only constitute jurisdictional error if the Migration Review Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Migration Review Tribunal’s exercise, or purported exercise of power, is thereby affected, resulting in a decision exceeding or failure to exercise the authority or powers given under the Migration Act: see Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Ground 1 simply states a legislative fact with respect to the time in which an application may be filed and does not allege jurisdictional error, and, therefore, ground 1 could not be made out at any substantive hearing of the matter.
Ground 2 indicates, as do the affidavits filed by the applicant, unhappiness with the Migration Review Tribunal decision, and says that the applicant is applying for a “legitimate decision”, which is otherwise unparticularised, and, of itself, raises no ground of or basis for any alleged jurisdictional error. Therefore, ground 2 could not be made out at any substantive hearing.
With respect to ground 3, the applicant claims “exceptional circumstances beyond the application lodgement previously.” There is, as the Minister’s submissions note, no requirement for the applicant to prove exceptional circumstances under cl.820.211 of Schedule 2 of the Migration Regulations. There are no new circumstances, exceptional or otherwise, set out in any of the affidavit material before the Court. Furthermore, the applicant cannot now raise matters going to factual issues in contention if those matters were not raised before the Migration Review Tribunal. Finally, ground 3 of itself, alleges no error, jurisdictional or otherwise, by the Migration Review Tribunal. Therefore, ground 3 could not be made out at any substantive hearing.
With respect to ground 4, it asserts that the applicant’s spousal relationship is strong. The nature of that spousal relationship, as a matter of fact, has been determined by the Migration Review Tribunal decision, which has been summarised by the Court above. For the applicant now to assert that it is strong simply seeks to set up a factual proposition contrary to that determined by the Migration Review Tribunal. This is an impermissible attempt to review the merits of the Migration Review Tribunal decision, and to cross the strictly policed line between merits and judicial review: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259. Ground 4 is, therefore, not a ground which would be capable of being made out at any hearing.
In relation to ground 5, the applicant’s intentions are irrelevant to the question of whether the Migration Review Tribunal committed jurisdictional error. If what is said is an admission by the applicant that false documents were provided to the Migration Review Tribunal, then, as the Minister submits, that is of no assistance to the applicant’s case. But, in any event, ground 5 asserts no jurisdictional error by the Tribunal, and, once again, is not capable of being made out at any substantive hearing.
None of the five grounds of the application, as it was originally filed, are capable of being made out, and it is fair to observe that they are, essentially, hopeless. The Court has, as is evident from the summary above, also reviewed the Migration Review Tribunal decision for itself. From that review, the Court observes that there is nothing in the Migration Review Tribunal which, in the Court’s view, could found jurisdictional error in the usual terms or on the basis of any want of procedural fairness. The Court concludes that there is simply no arguable case on the merits.
In conclusion, and having regard to the criteria on which this Court might set aside an earlier order, which is set out above, and for the reasons set out above in respect of each of those criteria, the Court does not consider that the applicant has made out a case for the setting aside of the Registrar’s order of 5 February 2014. It follows that the application in a case will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 May 2014
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