Singh v Minister for Immigration & Anor (No.2)
[2016] FCCA 279
•23 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 279 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case for reinstatement – whether applicant’s explanation for non-appearance at scheduled final hearing is satisfactory – whether application for judicial review of the decision of the Migration Review Tribunal has sufficient prospects of success such that there is utility in reinstating the proceeding – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359AA, 425, 476 Migration Regulations 2001(Cth), r.1.15A, Schedule 2 – cl.820 Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Cases Cited: Singh v Minister for Immigration and Border Protection & Anor [2015] FCCA 2654 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parteH (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 Sandhu v Minister for Immigration and Border Protection [2015] FCA 1321 |
| Applicant: | PRITPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1217 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 3 February 2016 |
| Date of Last Submission: | 5 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2016 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Punjabi interpreter. |
| Solicitor for the Respondents: | Ms Dale Watson (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1217 of 2014
| PRITPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case filed by the applicant on 3 November 2015, which, despite the orders sought, I understand to be seeking to set aside orders made by me on 25 September 2015 dismissing the applicant’s initiating application filed on 6 May 2014 for judicial review of a decision of the Migration Review Tribunal dated 9 April 2014 (“the MRT”).
On 25 September 2015, the applicant’s initiating application was dismissed by me pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at the scheduled final hearing of his application for judicial review of the MRT’s decision (see Singh v Minister for Immigration and Border Protection & Anor [2015] FCCA 2654).
In support of his Application in a Case, the applicant filed an affidavit, sworn/affirmed by him on 3 November 2015, and filed on that day. The first respondent accepts the reason provided by the applicant for his non-appearance on 25 September 2015 as attending the incorrect building. However, the first respondent opposes the reinstatement of the applicant’s initiating application on the grounds that his initiating application has no, or insufficient, prospect of success.
Background
The applicant’s initiating application filed on 6 May 2014 identified the grounds for judicial review, as follows:
“1. DIBP made error in making a decision:
Paragraph 4: Decision maker did not take into consideration state of mind of applicant. He is not very educated and has made little errors because of being illiterate. Decision maker considered relationship to be un-genuine just because of little differences in statements of applicant and sponsor.
2. Decision maker did not take note of post traumatic major depressive illness.
3. Decision maker was biased towards Indian students. She made some irrelevant comments about Indian students which were reported by Migration agent to DIAC but DIAC never came back for that complaint.
4. Decision maker did not give weight to Psychiatrist report.
5. MRT DECISION: Applicant met a road accident which badly affected his memory due to head injuries. Tribunal member relied on the statement which was mostly related to applicant’s previous incidents. Applicant did not remember those incidents due to his memory being affected by head injury. Tribunal member again took into consideration minor errors in statement of applicant and sponsor. Applicant and sponsor are in genuine relationship and wish to live together till last breath.
6. Applicant is in Australia since 1997 and in these 17 years he has created deep ties with Australia. He has no family back in India. Applicant bears good character and has not been involved in criminal activities.
7. Applicant’s accident claim has not yet been finalised. Applicant is in deep hardship due to inability to work and he is fully dependent on his spouse’s income. Applicant is being taken care by sponsor and her family.”
In written submissions filed on 2 September 2015, the first respondent provided an introduction and summary of the relevant legislation, together with an accurate summary of the background of the applicant’s claims and the MRT’s decision, as follows:
“Introduction
1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal), dated 9 April 2014 which affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (the visa): Court Book (CB) 262 - 269.
2. On 6 May 2014 the applicant filed an application under s.476 of the Migration Act 1958 (the Act) for judicial review of the Tribunal’s decision.
3. The matter came before the Court on 2 June 2014. On that day, the Court relevantly made an order listing the matter for a final hearing on 10 September 2015.
4. The first respondent submits that the application should be dismissed.
Relevant Legislation
The visa
5. Class UK visas are prescribed as a class of visa by item 1214C of Schedule 1 to the Migration Regulations 1994 (the Regulations). Class UK consists of 2 visa subclasses, namely subclass 820 (“Partner (Temporary) (Class UK)”) and subclass 801 (“Partner (Residence) (Class BS)”). A precondition to being granted a subclass 801 visa is that the visa applicant must be the holder of a Subclass 820 visa.
6. Clause 820 of Schedule 2 of the Regulations specifies criteria that must be satisfied at the time the visa application is made, as well as specifying the criteria that must be satisfied at the time the decision is made to grant the visa.
7. Subclause 820.211(2) requires that among other things, at the time of application:
(a) the applicant is the spouse or de facto partner of a person who is an Australia citizen, an Australian permanent resident or eligible New Zealand citizen; and
8. Subclause 820.221 requires that among other things, at the time of decision:
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
9. In other words, at the time the visa application was made, and at the time of the decision, the visa applicant is required to be the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
10. Section 5F of the Act states that a person is a ‘spouse’ of another person if, under subsection 2, the persons are in a ‘married relationship’. 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.
11. Regulation 1.15A sets outs arrangements for the purpose of determining if the conditions in s.5F(2)(a), (b), (c) and (d) of the Act exist: r.1.15A(1). Subregulation 1.15A(2) requires a decision maker to consider all the circumstances of the relationship, including matters set out at subregulation (3), which provides:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and (ii) the living arrangements of the persons; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
Background
12. The applicant arrived in Australia as the holder of a Business (Short Stay) (Subclass UC 456) visa on 15 April 1997. The applicant and his sponsor, a New Zealand citizen, were married in New South Wales on 9 November 2007: CB 62. The applicant applied to the Department for the visa on 10 November 2009: CB 1 – 33.
13. On 16 February 2012, a delegate of the Minister refused to grant the applicant a spousal visa on the basis that the applicant did not satisfy cl.820.211 of Schedule 2 to the Regulations: CB 174 – 183.
14. On 2 March 2012, the applicant filed an application with the Tribunal to review the delegate’s decision: CB 184 - 199. The applicant, his sponsor, friend and mother in law attended and gave evidence at a hearing before the Tribunal on 27 February 2014: CB 263.
Tribunal Decision
15. On 9 April 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa: CB 260 – 269.
16. The Tribunal was not satisfied that the applicant was the ‘spouse’ of his sponsor, within the meaning of the term as defined by s.5F of the Act. In reaching this conclusion the Tribunal considered the relevant factors as set out at r.1.15A(3) of the Regulations.
17. In particular, the Tribunal noted that the applicant and his sponsor had provided inconsistent and contradictory evidence in relation to their relationship to the delegate and also at the hearing.
18. In respect of the financial aspects of relationship, the Tribunal noted the applicant and his spouse had a joint bank account, yet there were no large deposits entering this account aside from the opening deposit, income did not appear to be regularly deposited, nor did rent appear to be debited. The applicant and sponsor gave inconsistent evidence at the hearing in relation to the nature of their financial arrangements – particularly, whether they had other bank accounts aside from a joint account, and where their wages were paid. The applicant had been unable to provide a plausible explanation when this discrepancy was put to him, pursuant to s.359AA of the Act, at the hearing: CB 264 [13] - [18].
19. The Tribunal also found the applicant and his sponsor gave inconsistent and contradictory evidence in relation to questions about the nature of their household. These inconsistencies extended to simple aspects of the relationship, such as, where they first lived as a married couple, who did the cooking and where they kept their dirty laundry. The applicant offered no explanation at hearing of these inconsistencies when the issue was put to him pursuant to s.359AA of the Act: CB 265 [20], [21], [25]. The Tribunal did not accept the applicant’s explanation in post-hearing submissions that these inconsistencies were caused by the applicant’s memory problem due to an accident in 2012 and also because he had trouble understanding the interpreter and was illiterate: CB 265 [19] - [26].
20. In considering the social aspect of the applicant and his sponsor’s relationship, the Tribunal noted the applicant and his sponsor had been unable to give consistent and corroborative evidence of what social activities they undertook together. Further, they gave contradictory evidence in relation to whether they took holidays together, how they spent their weekends, and also details in relation to their wedding. Information from the applicant’s mother-in-law and sponsor, obtained at the hearing, which was inconsistent with the applicant, was put to him pursuant to s.359AA of the Act, and the applicant’s explanation was found not to be persuasive. The Tribunal formed the view that the photographs provided by the applicant after the hearing were recently taken and the applicant had manufactured this evidence to support his application: CB 266 [27] - [30].
21. In relation to the nature or their commitment to each other, the Tribunal noted that the applicant could not speak English and his sponsor could not speak Punjabi. They claimed that they communicated with sign language. After considering the written statements of the parties and their evidence at hearing, the Tribunal was not satisfied that the parties had an emotional attachment to each other: CB 267 [31] - [33].
22. The Tribunal asked the applicant questions relating to his immigration history. The applicant gave evidence inconsistent with evidence before the Tribunal and this was put to the applicant, pursuant to s.359AA of the Act. Despite taking an adjournment for the applicant to receive assistance from his representative, he was unable to explain why he was not truthful in relation to his immigration history: CB 267 [34] - [35].
23. The Tribunal concluded the applicant was not a credible witness. It considered the applicant’s claim that his memory had been affected by a car accident in 2012 was unsupported by medical evidence: CB 268 [38]. In any event, the Tribunal found the car accident did not explain the inconsistent evidence given by the applicant and his sponsor to the Delegate in September 2011: CB 267 - 268 [36] – [40].
24. The Tribunal concluded that it was not satisfied the parties were in a spousal relationship, either at the time the visa application was made or at the time of its decision, and accordingly the applicant did not satisfy cl.820.211(2)(a) or cl 820.221: CB 268.”
The applicant was unrepresented before the Court today, although had the assistance of a Punjabi interpreter.
The applicant confirmed that he relied on the grounds set out in his initiating application. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.
Ground 1
In Ground 1, the applicant claimed that the MRT did not take into account the fact that he was not very educated and that he had made little errors because he was illiterate. The applicant also asserted that the MRT found that the applicant’s relationship with the sponsor was not genuine “just because of little differences in statements of applicant and sponsor”.
The applicant made no written or oral submission in support of Ground 1.
A fair reading of the MRT’s decision record makes clear that the applicant raised his lack of education at the MRT hearing and he purported to give that as an explanation for the inconsistencies in the evidence between himself and the sponsor. The MRT considered that explanation, but was not satisfied by it.
There is nothing to suggest that those findings were not open to the MRT on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
There is also no evidence to support the applicant’s assertion that his illiteracy and lack of education prevented him from meaningfully participating in the MRT hearing. The MRT decision record makes clear that the applicant was assisted by an interpreter and his migration agent at the MRT hearing.
Moreover, there is nothing in the MRT’s decision record to suggest that the applicant was unable to give evidence, present arguments, and answer questions at the hearing. There was no transcript of the MRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the MRT’s decision record was not accurate. At the directions hearing on 2 June 2014, the applicant was given an opportunity to file a transcript of the MRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no steps were taken by the applicant to rely on any such evidence.
In the circumstances, the Court accepts as accurate the MRT’s summary of the oral evidence given by the applicant and the exchanges that it had with the applicant at the MRT hearing. The Court is entitled to accept the MRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
In the circumstances, it cannot be suggested that the applicant’s illiteracy and lack of education deprived him of a meaningful opportunity to participate in the hearing mandated by s.425 of the Migration Act 1958 (Cth) (“the Act”) (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [19] per Gleeson CJ; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [20] per Keane CJ).
Accordingly, Ground 1 would appear to have no prospect of success and does not raise an arguable case for the relief claimed.
Ground 2
Ground 2 asserts that the MRT did not take into account the applicant’s “post traumatic major depressive illness”.
The applicant made no written or oral submission in support of Ground 2.
The MRT’s decision record makes clear that there was no evidence before it which suggested that the applicant was suffering from a post traumatic depressive illness.
The MRT referred to a discharge sheet and medical report in relation to a car accident in 2012 which the applicant claimed he was involved in. The MRT noted the submission made by the applicant’s migration agent that the applicant’s memory function was impaired by the car accident. However, the MRT found that there was no medical evidence before it which suggested that the applicant had problems with his memory function since the car accident in 2012. The medical report provided by the applicant after the MRT hearing did not corroborate the applicant’s claim or the migration agent’s submission.
The MRT noted that even if it accepted that the applicant had memory problems since the car accident in 2012, that did not explain why the applicant and the sponsor could not give consistent evidence of simple aspects of their life together to a delegate of the first respondent (“the Delegate”) at an interview in September 2011.
Accordingly, Ground 2 would appear to have no prospect of success and does not raise an arguable case for the relief claimed.
Ground 3
Ground 3 asserts that the MRT was biased towards Indian students. The applicant claimed that the MRT made irrelevant comments about Indian students at the MRT hearing, which was reported by his migration agent to the Department of Immigration and Citizenship (“the Department”).
In support of Ground 3, the applicant submitted to the Court that the MRT was biased towards Indian students and that he was not an Indian student. The applicant submitted that the mention of Indian students by the MRT was completely wrong. However, there is no reference in the MRT’s reasons in respect of Indian students.
A claim of bias is serious and requires evidence, such as a transcript of the MRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the MRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
A fair reading of the MRT’s decision record does not suggest that the MRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the MRT, might reasonably apprehend that the MRT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).
Accordingly, Ground 3 would appear to have no prospect of success and does not raise an arguable case for the relief claimed.
Ground 4
Ground 4 asserts that the MRT did not give weight to the “psychiatric report”.
In support, the applicant repeated the claim.
However, apart from a discharge sheet, the only medical report in relation to the accident was provided by a person described as a ‘rehabilitation physician’. There was no evidence before the MRT of any psychiatric report. The applicant was unable to identify for the Court any such report.
The report of the rehabilitation physician, to which the MRT had regard, did not make any mention of any psychiatric condition or any impairment of the applicant’s brain function.
Accordingly, Ground 4 would appear to have no prospect of success and does not raise an arguable case for the relief claimed.
Ground 5
Ground 5 asserts that the MRT relied on a statement which related to the “applicant’s previous incidents” and the applicant did not remember those incidents because his memory was affected by head injury.
In support, the applicant simply said that his marriage was genuine, but that the MRT did not believe him.
I accept the first respondent’s submission that the applicant’s substantial complaint in Ground 5 is unclear. If the applicant is asserting that the MRT relied on the inconsistencies in the evidence given by him before and after the car accident, the MRT did not do so.
In making its adverse credibility findings, the MRT had regard only to the inconsistencies and contradictions between the applicant and the sponsor’s evidence before the Delegate in September 2011, and the inconsistencies between the applicant and the sponsor’s evidence at the MRT hearing.
As noted above in paragraph 21, the MRT considered that even if the applicant’s cognitive ability had been affected by the car accident, that did not explain any inconsistencies in the applicant and the sponsor’s evidence at the interview before the Delegate in September 2011, prior to the applicant’s car accident.
In any event, the MRT’s decision record makes clear that the MRT put these inconsistencies to the applicant in accordance with s.359AA of the Act. The applicant did not contend otherwise.
Accordingly, Ground 5 would appear to have no prospect of success and does not raise an arguable case for the relief claimed.
Ground 6
Ground 6 asserts that the applicant has been in Australia since 1997, has deep ties with Australia, has no family ties in India, is of good character and has not been involved in any criminal activities in Australia.
In the circumstances, Ground 6 does not identify any jurisdictional error on the part of the MRT and appears more to be a disagreement with the findings and conclusions of the MRT. The applicant’s complaint in Ground 6, at its highest, does no more than invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 6 would appear to have no prospect of success and does not raise an arguable case for the relief claimed.
Ground 7
Ground 7 asserts that the applicant has an outstanding accident claim and is financially dependent on the sponsor. Again, such a complaint does not identify any error capable of review by this Court or any error capable of establishing jurisdictional error.
Conclusion
The principles to be applied in considering whether to set aside orders dismissing a proceeding are accurately summarised by the first respondent in its written submissions filed on 5 February 2016, as follows:
“2. The principles to be applied by the Court in the exercise of such a power were set out by Justice Ryan in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Three factors were identified by his Honour as being relevant to the exercise of the court's discretion. The first was whether there was a reasonable excuse for the party's non-appearance from the hearing in which the proceeding was struck out. The second is whether there is any prejudice which may flow to the other party by the reinstatement. The third was whether the applicant has a reasonably arguable prospect of success on the substantive application as otherwise there is no purpose in reinstating the application.
…
4. These principles have recently been endorsed in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235, which involved an application for extension of time and leave to appeal from a judgment of the Federal Circuit Court refusing to set aside orders dismissing the application for non-attendance. In that matter, the court below accepted that the applicant had a reasonable excuse for failing to attend, however, as it was found that the proceeding had no prospect of succeeding, the application to set aside the orders was refused. Justice Perram held that the court's approach below was free from error and dismissed the application for leave to appeal. See also Sandhu v Minister for Immigration and Border Protection [2015] FCA 1321, where no error was found in the Federal Circuit Court judge's exercise of discretion in refusing to set aside orders relying on the principles in MZYEZ.”
The first respondent does not raise any issues in relation to the first and second factors, namely, the applicant’s explanation for the failure to attend the scheduled final hearing and any prejudice that may flow to the first respondent if the matter was to be reinstated. The first respondent submits that the application should be refused on the basis that the applicant’s initiating application has no reasonably arguable prospect of success.
Based on those principles, and in light of the total lack of prospects of success in raising a reasonably arguable case in respect of the applicant’s application for judicial review of the MRT’s decision, the applicant’s Application in a Case for reinstatement should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 23 February 2016
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