Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 398
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 398
File number: MLG1615 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 16 May 2023 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – cancellation of Partner (Temporary) Subclass 100 (Spouse) visa pursuant to s 109(1) of the Migration Act– whether Tribunal failed to consider legal consequences – whether Tribunal failed to act on correct principle - no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 48, 101, 109, 362A and 375A Migration Regulations 1994 (Cth) reg 2.41 and schedule 4 cls 4013 and 4014 Cases cited: DLJ18 v Minister for Home Affairs [2019] FCAFC 236; (2019) 273 FCR 66
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 2020 FCR 44
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 29 March 2022 Date of hearing: 29 March 2022 Place: Melbourne Counsel for the Applicant: Mr Solomon-Bridge Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Ms Chan Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG1615 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.The Application filed 8 June 2018 is dismissed.
2.The Applicant pay the Fist Respondent’s costs fixed in the sum of $7,853.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed on 8 June 2018 and amended on 8 March 2022 (Amended Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 7 May 2018 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to cancel the Applicant’s Subclass 100 (Spouse) visa (Visa) pursuant to s 109(1) of the Migration Act 1958 (Cth) (Migration Act).
In order to obtain relief, the Applicant must show that the Tribunal has fallen into jurisdictional error.
This matter was heard on 29 March 2022 and proceeded in person (Final Hearing). The Applicant did not request an interpreter and was represented by Counsel.
The Court has before it: the Amended Application; a Court Book filed by the Minister on 2 October 2019, numbering 609 paginated pages (Court Book); the Applicant’s Submissions, filed on 8 March 2022 (Applicant’s Submissions); the Minister’s Written Submissions, filed on 22 March 2022 (Minister’s Submissions); the Applicant’s List of Authorities, filed on 25 March 2022; and the Minister’s List of Authorities, filed on 24 March 2022. The Court has also considered the transcript of the Final Hearing, where both Counsel for the Applicant and the Minister made oral submissions.
BACKGROUND
The Minister’s Submissions accurately summarise the background to this matter at paragraphs [4] to [19]. The Court adopts those submissions as its own with some amendments as follows.
The Applicant is an Indian national, born in or around 1977.
On 15 March 2013 the Applicant applied for a combined class UF/NC subclass 309/100 Partner visa (Partner Visa) under the sponsorship of his then wife.[1] In the Partner Visa application forms (Visa Application) the Applicant did not provide an answer in relation to whether he had been known by any other names,[2] and provided answers to the effect that:
(a)He had not been known by other names;
(b)He had never had a different date of birth;
(c)The only passports issued to him were the two (2) provided under the name “Ravinder Singh”;
(d)He had not travelled to Australia before;
(e)He had no outstanding debts to the Australian Government; and
(f)He had resided in India since birth.
[1] Court Book (CB) 62-117.
[2] CB 63.
On 7 May 2013 a Delegate of the Minister granted the Applicant a class UF subclass 309 Partner (temporary) Visa.
On 11 November 2013 a Delegate of the Minister granted the Applicant a permanent class BC subclass 100 Partner visa.
On or around 20 March 2017, the Department of Immigration and Border Protection (Department) received information that the Applicant had previously lived in Australia under the name of “Aravinder Singh” and had a police criminal case against him regarding the holding of two passports at the same time under different names in India.[3]
[3] CB 3.
The Department conducted investigations to verify the information, which included a comparison of the Applicant’s facial image and checks of the passports under both identities by an integrity officer.
The Department concluded that the Applicant, under the identity of Aravinder Singh, had arrived in Australia on 7 August 2003 on a business short stay visa. The Applicant then applied for protection on 5 September 2003, which was refused and this decision was affirmed by the Refugee Review Tribunal on 17 September 2004. The Applicant unsuccessfully appealed the decision to the Federal Court and the High Court, which was resolved on 27 April 2006. The Applicant’s bridging visa ceased on 25 May 2006 and he consequently became an unlawful non-citizen on 9 August 2005. The Applicant departed Australia on 21 December 2009.
Consequent to the Department’s findings, on 14 September 2017 a delegate of the Minister (Delegate) gave the Applicant notice of her intention to consider cancellation of the Applicant’s Visa (Notice of Intention). The Notice of Intention stated that, in light of the information discovered by the Department as outlined in [11] to [13], the information provided in the Visa Application indicated non-compliance with s 101 of the Migration Act.
Section 101 of the Migration Act provides that:
101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
On 14 September 2017 the Applicant’s representative responded to the Notice of Intention with admissions that the Applicant used a false passport in the name of Aravinder Singh to enter Australia in 2003, used two separate passports in India and knowingly failed to provide correct information in the Visa Application.[4]
[4] CB 234-255.
On 25 October 2017 the Delegate cancelled the Visa pursuant to s 109(1) of the Migration Act (Delegate’s Decision).[5] Section 109 of the Migration Act allows the Minister to cancel a visa if the visa holder has failed to comply with specific sections of the Migration Act, such as s 101. Section 109 states that:
[5] CB 348-366.
109 Cancellation of a visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non- compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
On 8 December 2017 the Delegate certified under s 375A of the Migration Act that disclosure of certain information otherwise than to the Tribunal would be contrary to public interest (Non-Disclosure Certificate).[6]
[6] CB 367.
On 26 October 2017 the Applicant applied to the Tribunal for review of the Delegate’s Decision.[7]
[7] CB 368-369.
On 12 April 2018 the Applicant’s representative provided submissions to the Tribunal along with further material that would be relied upon at the Tribunal’s hearing.[8] The Applicant’s representative also provided the Tribunal with information regarding the Applicant’s arrangement to pay his debt to the Commonwealth.[9]
[8] CB 416-480.
[9] CB 516-520.
The Applicant sought a copy of the Non-Disclosure Certificate under s 375A of the Migration Act, which was provided on 17 April 2018.[10] The Applicant also sought access to written material before the Tribunal under s 362A of the Migration Act and documents covered by the Non-Disclosure Certificate.[11] The former request was granted and the latter request was not.[12]
[10] CB 484-497.
[11] CB 498-508.
[12] CB 510-515.
The Applicant’s hearing before the Tribunal was held on 19 April 2018 (Tribunal Hearing).[13] The Applicant (with assistance from an interpreter), his representative and various witnesses for the Applicant attended the Tribunal Hearing. The Applicant’s representative provided a post-hearing submission on 2 May 2018.[14]
[13] CB 521-523.
[14] CB 539-548.
TRIBUNAL’S DECISION
On 7 May 2018 the Tribunal affirmed the Delegate’s Decision. The Tribunal’s Decision appears at pages 554 to 575 of the Court Book.
The Tribunal firstly set out the background to the Visa Application. The Tribunal stated that the role of the Tribunal was to review the Delegate’s Decision, which was based on the Delegate forming the view that the Applicant did not comply with s 101 of the Migration Act. The Tribunal’s task was to decide whether it should cancel the Applicant’s visa in the exercise of its discretion, having regard to the various factors that weigh for or against cancellation.
The Tribunal outlined and considered the evidence that was before the Delegate. The Tribunal also outlined and considered evidence that was submitted to the Tribunal and presented at the Tribunal Hearing.
The Tribunal was satisfied that the Delegate “had reached the necessary state of mind to engage s 107” and that the notice issued under s 107 of the Migration Act complied with the statutory requirements.
The Tribunal assessed the evidence and found that the answers the Applicant provided in the Visa Application were incorrect and therefore the Applicant had not complied with s 101 of the Migration Act. The Tribunal then carried out an assessment of whether the Visa “should” be cancelled having regard to the circumstances.
The Tribunal assessed each of the prescribed circumstances set out in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations). In summary, the Tribunal concluded that:
(a)The Applicant committed several breaches of the law throughout his previous stay in Australia, which he was well aware of and did not accept any responsibility. There was no indication that the Applicant had failed to comply with immigration requirements or the law since his last stay in Australia.
(b)The Applicant had integrated into the Australia community and contributed to the community through various activities, and there were positive character statements to this effect. The relationship between the Applicant and his partner and the partner’s child was of importance. The best interests of the child did not require the Applicant to be present in Australia.
(c)The non-compliance with the Migration Act was serious, and the decision to grant the Visa was based, at least partly, on incorrect information. The Applicant had not attempted to disclose non-compliance and the expressed remorse was not genuine. The Applicant had shown a significant and persistent disregard for Australian laws.
(d)The relationship between the Applicant and his partner could continue whether or not the Applicant maintained the Visa, as the relationship was long distance in that they did not have a joint household and they primarily communicated electronically. The Applicant could also apply for a visa with his partner as the sponsor in the future.
(e)In the totality of the circumstances, the factors in favour of cancellation outweighed other considerations.[15] The seriousness of the breach and the Applicant’s conduct outweighed the limited detrimental effects to the Applicant, his relationships and community.
[15] CB 566-574.
Therefore, the Tribunal concluded that the Visa should be cancelled.
PROCEEDINGS BEFORE THE COURT
On 7 June 2018 the Applicant applied to this Court for judicial review of the Tribunal’s Decision.[16]
[16] CB 576-604.
The Amended Application contains the following single ground of review (Ground of Review):
1.The Tribunal failed to consider the legal consequences of its decision, or failed to act on correct principle, in that it failed to consider the application of s 48 of the Migration Act 1958, and the engagement of PIC 4013 and PIC 4014, as statutory consequences of the decision.[17]
[17] Amended Application, filed 11 March 2022, 5.
In addition to the Ground of Review, Counsel for the Applicant made oral submissions at the Final Hearing. The Ground of Review was described during the Final Hearing as having two limbs.[18]
[18] Transcript P26:L25.
The first limb of the Ground of Review refers to the Tribunal’s alleged failure to consider the legal consequences of its decision.
The second limb of the Ground of Review refers to the Tribunal’s alleged failure to act on correct principle in s 48 of the Migration Act and public interest criteria (PIC) in PIC 4013 and PIC 4014 in schedule 4 of the Regulations.
CONSIDERATION
Limb 1
The Applicant submitted that the Tribunal needed to “take account of “legal consequences” as a “mandatory relevant consideration in discretionary decision making”.[19] The Applicant cited the authorities of: NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 2020 FCR 44; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1; and DLJ18 v Minister for Home Affairs [2019] FCAFC 236; (2019) 273 FCR 66.[20] The Applicant submitted that these cases confirm the principle regarding the need to consider legal consequences and debate the scope of legal consequences which need to be considered.
[19] Applicant’s Submissions, filed 11 March 2022 (Applicant’s Submissions) 1, [3].
[20] Applicant’s Submissions, [3].
The Minister conceded that the scope of the legal consequences should include the Applicant’s ability to apply for a visa in the future. However, the Minister submitted that the Tribunal “properly considered those consequences that were sufficiently proximate to its decision” and that even if the Tribunal made errors as alleged, ““the statutory consequences” purported to have been overlooked did not have a material (or any) application in this case”.[21]
[21] Minister’s Written Submissions, filed 22 March 2022 (Minister’s Submissions), [31] and [32].
The Tribunal recognised that there are no mandatory cancellation circumstances prescribed under s 109(1) of the Migration Act and that it was required to consider both the evidence before the Delegate and any evidence before it, which included the Applicant’s response to the Notice of Intention.[22]
[22] CB 563.
In weighing the various factors for or against cancellation, the Tribunal considered legal consequences at paragraph [51] of the Tribunal’s Decision, which states:
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled and unless he is granted another visa, the application will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the Applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia and he may be subject to an exclusion period in relation to future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.[23]
[23] CB 598, [51].
The Tribunal then went on to consider if cancelling the Visa would result in any consequential visa cancellations or breaches of international obligations. The Tribunal also considered the circumstances of the Applicant at the time and noted that there were no other non-compliances or breaches of the law by the Applicant since the Visa had been granted.
Importantly, the Tribunal considered and placed significant weight on the consequences in relation to the Applicant’s new partner and the partner’s son who is an Australian citizen. The Applicant had emphasised the relationship to the Tribunal and the Tribunal accepted that this consideration weighed in favour of justifying the exercise of discretion in favour of the Applicant. However, the Tribunal considered the ability of the Applicant to maintain his relationships whilst overseas and the possibility that the Applicant could enter the country again holding another visa. Therefore, in weighing up the factors the Tribunal found that the future ability of the Applicant to apply for a partner visa weighed in favour of cancelling the Visa.
The Tribunal properly considered the legal consequences of its decision and discharged its obligation. Therefore, Limb 1 cannot succeed.
Limb 2
The Applicant submitted that the Tribunal failed to act on correct principle due to its misunderstanding of s 48 of the Migration Act and also of PIC 4013 and 4014. The Minister submitted that the Tribunal’s understanding of the legal consequences was correct and that even if they were misunderstood, these misunderstandings were not material to its decision.
The Court accepts the Minister’s submissions as discussed below. No legal error in the Tribunal’s decision making can be found and therefore Limb 2 cannot be made out.
Section 48 of the Migration Act
Section 48 of the Migration Act provides that if certain conditions are met, non-citizens who have had a visa refused or cancelled may apply for particular visas.
The Applicant submitted that the Tribunal erred in its analysis of the operation of s 48 of the Migration Act in the Applicant’s case. The Applicant contends that s 48(1)(b)(ii) prevents the Applicant from making any visa applications whilst in Australia.[24] In allegedly misunderstanding the operation of s 48, the Applicant claims that the Tribunal failed to sufficiently consider the legal consequences of cancelling the Visa which resulted in jurisdictional error.
[24] Applicant’s Submissions, [6].
The Minister submitted that the Tribunal considered the Applicant’s ability to make future visa applications under s 48 and s 48A of the Migration Act. The Minister submitted that the Applicant’s submission was incorrect given that as a result of the cancellation of his Visa the Applicant would have to depart Australia and therefore would be outside the migration zone and could apply for a visa under s 48.[25] The Court accepts these submissions.
[25] Minister’s Submissions, [29].
The Tribunal considered the different possibilities the Applicant has in relation to validly applying for a new visa in the future as well as the various consequences for the Applicant.
Public Interest Criteria
The PIC in 4013 and 4014 operate to define applicants who are affected by a risk factor and therefore have conditions relating to when a valid visa application can be made. A person who has had their visa cancelled can be categorised as a person who is affected by a risk factor.
The Applicant submitted that the Tribunal’s vague reference to an exclusion period was correct and that by not properly addressing how PIC 4013 and PIC 4014 would prevent the Applicant from submitting a valid visa application for three (3) years the Tribunal committed a legal error in its decision making process.
The Applicant’s submission that in mentioning the possibility of future exclusion period the Tribunal did not act on a correct understanding of the law, and therefore its decision was legally incorrect cannot be accepted. The Applicant’s submission that the Tribunal thought the Applicant was eligible to apply for a visa immediately which weighed in favour of cancelling the Visa also cannot be accepted.
As correctly submitted by the Minister, the Tribunal correctly characterised the exclusion periods as a “possibility”. PIC 4013 and PIC 4014 may be waived and the relevant (Subclass 309) partner visa does not include the two PIC identified. Not all categories of visas are subject to PIC 4013 and PIC 4014, and the Tribunal is not required to speculate and consider all the categories of visa of which the Applicant might apply for in the future. There were a number of pathways the Applicant could choose to remain in or return to Australia.
Further, the ability of the Applicant to apply for visas in the future was considered in detail as part of the considerations of legal consequences, as discussed in [35] to [41] of these Reasons for Judgment. The exclusion period was one factor in the Tribunal’s decision making but it cannot be said to be “material” to the decision as the Applicant contended. Notably the exclusion periods would delay the Applicant making a valid visa application, not prevent the Applicant from making a valid visa application indefinitely. The Tribunal correctly recognised the ability of the Applicant to apply for a visa in the future and came to the conclusion, after considering all the factors, that the consequences of cancelling the visa pointed in favour of affirming the Delegate’s Decision.
CONCLUSION
The Tribunal did not fail to consider legal consequences or fail to act on correct principle. No jurisdictional error can be found.
Accordingly, the Amended Application must be dismissed.
The Minister seeks costs in the event that the Amended Application is dismissed.[26] Accordingly an order will be made that the Applicant pay the Minister’s costs calculated in accordance with Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2022 (Cth) fixed in the sum of $7,853.
[26] Minister’s Submissions, [33].
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 16 May 2023
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