Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 771
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771
File number(s): SYG 3665 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 5 September 2022 Catchwords: MIGRATION – Partner visa – whether the Tribunal considered compelling reasons – whether the Tribunal failed to exercise a discretion to adjourn or unreasonably refused an adjournment Legislation: Migration Act 1958 (Cth) ss 5F, 361, 476
Migration Regulations 1994 (Cth) reg 1.15A(3)
Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 5 September 2022 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms A Meaney for Mills Oakley ORDERS
SYG 3665 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
5 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 27 November 2017 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
JUDGE GIVEN:
I have before me an application filed on 27 November 2017 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (delegate) made in 2015 refusing to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (Partner visa).
BACKGROUND
On 10 February 2014, the applicant made a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa on the basis of his marriage to the sponsor who is an Australian citizen (sponsor) (Court Book (CB) 1-49).
By a Statutory Declaration provided with his visa application (CB 40-41), the applicant stated that he began his relationship with the sponsor in July 2012 and had lived together with the sponsor and her son, since their marriage on 13 January 2014. The applicant also provided a personal statement (CB 49), Statutory Declarations from supporting witnesses (CB 30-35) and the sponsor (CB 42-43), identity documents (CB 36-39), a copy of their marriage certificate (CB 44), the birth certificate of the sponsor’s child’s (CB 45) and copies of the applicant’s previous marriage certificate and divorce order (CB 46-47).
On 21 November 2014, the Department invited the applicant to provide further information about his relationship with the sponsor (CB 57-62). In response to that invitation the applicant provided numerous documents, including a further submission, Statutory Declarations made by him, the sponsor and a supporting witness, financial documents and photographs (CB 66-109). The applicant also provided the Department with additional documents including, pages from the applicant’s passport, Indian police clearance certificate and an Australian national police certificate (CB 110-115).
On 2 January 2015, the Department requested further information, including the applicant’s completed Form 929 (CB 116-121). In response to the Department’s request, the applicant provided a completed “Personal particulars for assessment including character assessment” Form 80 and provided further copies of documents previously provided (CB 122-142).
In order to satisfy the criteria for the grant of a Partner visa, the applicant needed to meet the criteria in cl 820.211(2) and 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 12 November 2015, the delegate refused to grant the applicant a Partner visa on the basis that the applicant did not meet Criterion 3001 in Schedule 3 to the Regulations, which required that the application be validly made within 28 days of the last day the applicant held a substantive visa (CB 143-172). The delegate was not satisfied the applicant and the sponsor were in a genuine and continuing relationship and, on that basis, determined that there was no compelling reason to justify waiving the Schedule 3 criteria. Accordingly, the delegate found that the applicant did not meet cl 820.211(2)(d)(ii) or any of the alternative provisions in cl 820.211 (CB 152).
The delegate was satisfied that the applicant and sponsor were married, but found there was no evidence that they saw the relationship as a long term one, that they drew emotional support and companionship from each other or that they had a commitment to a shared life together (CB 152). The delegate found that the evidence was not sufficient to demonstrate that the applicant was the spouse of the sponsor as defined under s 5F of the Migration Act 1958 (Cth) (Act) (CB 152). The delegate also refused the application for a Partner (Residence) (Subclass 801) visa as the applicant did not meet cl 801.221 in Schedule 2 of the Regulations (CB 152).
First Tribunal decision
On 27 November 2015, the applicant lodged an application with the Tribunal to review the delegate’s decision to refuse the Partner visa application (CB 173-174).
On 24 November 2016 and 9 December 2016, the applicant appeared before the Tribunal to give evidence and present arguments. The sponsor did not attend either of the hearings (CB 212 at [4]).
On 19 December 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a Partner visa on the same basis (CB 211-217). The applicant sought judicial review of that decision by an application to this Court made on 6 January 2017.
On 21 April 2017, orders were made by consent by a Judge of this Court remitting the matter for reconsideration according to law with the following agreed notation:
The first respondent accepts that the application must be allowed on the basis that the decision of the second respondent was affected by jurisdictional error as it failed to have regard to relevant and probative evidence: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, (2014) 309 ALR 67 at 79-80 [54], [56], [58] per Katzmann, Griffiths and Wigney JJ.
The applicant provided evidence to the first respondent relating to his relationship with his sponsor. The second respondent did not refer to that evidence in its decision record, giving rise to the inference that the evidence was overlooked. The evidence was cogent in the context of the second respondent’s overall decision as it was germane to the issue on review, that being whether there were “compelling reasons” not to apply the criteria in Schedule 3 as required by the visa criterion in cl 802.211(2)(d)(ii) in Schedule 2 to the Migration Regulations 1994 (Cth). Accordingly, the second respondent erred by failing to consider that evidence.
Second Tribunal Decision
On 26 September 2017, the applicant was invited to attend a hearing before the Tribunal scheduled for 1 November 2017 and to provide any additional relevant material by 25 October 2017, including about the issue of whether or not he had complied with the timeframe requirements in Schedule 3 at the time he lodged his visa application and if not, whether there were any compelling reasons for not applying the requirements (CB 237). The Tribunal also requested that the sponsor attend the hearing and enclosed the “Response to hearing invitation – MR Division” for completion. In response, on 7 October 2017, the applicant’s representative provided a completed hearing invitation form which indicated that the sponsor would not be attending the hearing (CB 239-241).
On 1 November 2017, the applicant attended the Tribunal hearing. The sponsor did not attend the hearing of the reconstituted Tribunal (CB 243-245).
On 3 November 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a Partner visa on the basis that the parties were no longer in a genuine and continuing relationship and did not meet the definition of “spouse” under s 5F of the Act and therefore, that the applicant did not meet cl 820.221 of the Regulations (CB 252-257).
The Tribunal identified that the issue on the review was whether the applicant and sponsor met the definition of “spouse” in s 5F of the Act at the time of its decision (CB 253 at [8]).
The Tribunal summarised the applicant’s evidence at the hearing about why his sponsor was not in attendance (CB 253 at [9]) as well as his evidence that they had not lived together since January 2017 (CB 253 at [10]).
The Tribunal gave the applicant an opportunity to present “compelling reasons” for the waiver of Schedule 3 criteria and considered the evidence he gave. The applicant in essence said that the following constituted compelling reasons (CB 254 at [12]):
(a)he did not know anything about the medical status of his father-in-law;
(b)his mother had died and he could not return to India because he would be unemployed;
(c)he had pursued an electrician’s ticket and had received a favourable skills assessment; and
(d)that he wanted to stay in Australia to pursue being an electrician and to restore his relationship with the sponsor.
The Tribunal considered whether the applicant was the spouse of the sponsor as defined by s 5F of the Act with regard to all the circumstances of the relationship, including evidence of the financial and social aspects, the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3) of the Regulations (CB 254 at [13]-[14]).
The Tribunal accepted that the parties were in a valid marriage for the purposes of s 5F(2)(a) of the Act (CB 254 at [15]). In considering the financial aspects of the relationship, the Tribunal found that the applicant had not provided any up-to-date financial information, such as joint accounts. It found it was unaware of any legal obligation between the parties and, since they had not lived together since January 2017, there was no current evidence of sharing day-to-day expenses. Accordingly, the Tribunal was not satisfied with the “social” aspects of the parties’ relationship (CB 254 at [16]). Within this paragraph the Tribunal incorrectly referred to “social” as opposed to “financial” aspects. The first respondent says this is merely a typographical error. It is noted that this error appears directly under the heading “Financial aspects of the relationship”.
In considering the nature of the parties’ household, the Tribunal noted the applicant’s evidence that he lived in a different suburb that the sponsor. It also noted that the sponsor cared for her ill father, but the applicant had never met him or visited him. The Tribunal found the applicant had previously referred to the sponsor’s child as his step-son, but there was no evidence he was involved in family care since he was living separately from the sponsor. The Tribunal was not satisfied by the household aspects of the relationship (CB 255 at [17]).
The Tribunal also found that the applicant had not submitted any recent evidence of socialising with the sponsor or acceptance of the parties’ relationship by friends and family of the sponsor. The Tribunal again noted that the applicant had not met the sponsor’s father or visited him in hospital and did not know where he was. Since the applicant was living apart from the sponsor, the Tribunal concluded there was no current evidence that they undertook social activities, together and was not satisfied of the social aspects of their relationship (CB 255 at [18]).
Having considered the applicant’s evidence about the then current state of his marriage, and also having revisited the applicant’s evidence at the previous Tribunal hearing, the Tribunal was not satisfied that a mutual commitment to a shared life was present between the parties. The Tribunal had regard to the fact that the sponsor had not attended any of the Tribunal hearings and found this indicated that she did not see the need to provide emotional support to the applicant at crucial times in his life. The Tribunal noted the applicant’s evidence that the parties had remained separate for a considerable time and found, despite the protestations of the applicant, that the present evidence cumulatively supported a conclusion that the parties did not see their relationship as long term (CB 255 at [19]).
Having considered the matters in reg 1.15A(3), the Tribunal found that the parties:
(a)did not have a mutual commitment to a shared life to the exclusion of all others;
(b)did not have a genuine and continuing relationship; and
(c)did not live together, but rather lived separately and apart on a permanent basis.
Accordingly, the Tribunal found that the parties did not meet the definition of spouse in ss 5F(2)(b)-(d) (CB 255 at [21]) and therefore the applicant did not meet cl 820.221 (or any of the alternative criteria) (CB 255 at [23]-[24]). The Tribunal concluded that the applicant did not meet the criteria for the grant of the visa (CB 255 at [25]).
Application to this Court
By an application to show cause filed on 27 November 2017 the applicant seeks judicial review pursuant to s 476 of the Act and raised the following grounds of review (errors in original):
1.The Tribunal’s decision was affected by Jurisdictional error as Tribunal failed to comply with the previous order of the Federal Circuit Court made in April 2017.
2.The Tribunal failed to take into account the important material which is the decision of the Federal Circuit Court where the Legal representative of the Minister for Immigration and Border Protection accepted by consent that the decision of the Tribunal was affected by Jurisdictional error as it failed to have regard to relevant probative evidence which is the ongoing depression of the sponsor and illness in the family.
3.The Tribunal also failed to consider the compelling reasons and the applicant’s overall family situation, mainly recent death of his mother and his inability to attend the funeral as he is on bridging visa C which prohibits him to travel. In addition, the Tribunal also failed to acknowledge the depression of the sponsor and her reason not to attend which caused great tension among the family and had added further anxiety and depression among the family.
4.The Tribunal also took irreverent consideration of temporary separation and considered that the separation permanent, however failed to acknowledge that the applicant was living with the sponsor throughout the time of the proceeding. Tribunal also failed to identify the circumstances of the applicant’s temporary separation from the sponsor.
With his originating application the applicant also filed an Affidavit made by him on 27 November 2017 which I received at hearing as a submission. Paragraph [8] of that Affidavit might be taken to raise an additional ground, which I explored with the applicant at hearing.
The matter first came before the Court for a directions hearing on 21 December 2017 on which occasion a Registrar made orders granting the applicant leave to file an amended application on or by 15 March 2018. The applicant did not do so. The matter next came before the Court on 23 August 2018 for a callover at which point it was adjourned to a date to be administratively advised.
On 15 June 2022, the matter was brought into my docket following a telephone callover on the same date before a Registrar, at which time orders were made indicating that the hearing date would be advised but making orders that the applicant and first respondent file written submissions 14 and 7 days respectively before that hearing. On 4 July 2022, I made orders listing the matter for hearing before me today and granting the applicant further leave to file and serve any amended application and affidavit evidence on or by 18 July 2022. Nothing further was filed by or for the applicant within time or at all. At hearing, and in the absence of any written material having been filed by the applicant, I gave him the opportunity to address them.
Grounds 1, 2 and 3
It is convenient to deal with grounds 1 to 3 of the application together because they turn upon an allegation that the Tribunal failed to consider the question of compelling circumstances for the waiver which, as set out earlier, was the basis upon which the matter was initially remitted to the Tribunal for reconsideration according to law.
When asked to speak to these grounds, the applicant said that he had no idea what was in them because his migration agent had prepared them for him. When I drew the applicant’s attention to the footer on page 2 of the application which states that he prepared the document, and to his signature on page 4 of the application which he accepts is his, the applicant said that the migration agent had written something for him and he had copied it into the application. While it seems on the face of the application that the grounds have been drafted by somebody with some legal experience or knowledge, ultimately it was the responsibility of the applicant to satisfy himself that the grounds in the application he filed were those which he wished to put before the Court.
In relation to those grounds, the applicant indicated that he did not have much that he could say in relation to them. However, in relation to ground 3, the applicant then made some submissions in relation to the death of his mother and stating that he had had an accident which had caused him to suffer from depression. When I questioned him further about the timing of this accident, the applicant said it occurred in 2021.
Contrary to the assertion of the applicant, it is not the case that the Tribunal failed to have regard to the matters that the applicant expounded before it in relation to compelling reasons. Rather, a review of the Tribunal’s decision records at [12] that the applicant was expressly given the opportunity to present compelling reasons in relation to the question of the waiver of the Schedule 3 criteria. The Tribunal records in that paragraph the various matters which the applicant said went towards constituting such compelling reasons.
Grounds 1 to 3 of the application, in a sense, misunderstand the basis upon which the matter was remitted to the Tribunal again in 2017, which was that the Tribunal had failed to consider evidence which had been directly relevant to whether the parties were in a spousal relationship and whether there were compelling reasons to not apply the Schedule 3 criteria. Contrary to what is asserted by the applicant, the second Tribunal did not overlook the evidence that he gave to it in relation to what constituted compelling reasons.
The Minister submits that these grounds fundamentally misunderstand the basis of the Tribunal’s decision. The Court’s orders of 21 April 2017 remitted the matter for reconsideration on the basis that the Tribunal’s decision of 19 December 2016 overlooked evidence that was directly relevant to whether the parties were in a spousal relationship and whether there were compelling reasons not to apply the Schedule 3 criteria (CB 218-219). As the reconstituted Tribunal explained, the issue on the review became whether the applicant and sponsor were in a spousal relationship (CB 253 at [8]). “Spouse” is defined in s 5F of the Act (see especially s 5F(2)). The first respondent says that was for the Tribunal to make that assessment, and in doing so it was required to consider the matters in reg 1.15A(3) and I agree: see He v Minister for Immigration and Border Protection (2017) 255 FCR 41.
The Tribunal made its determination on the basis of the material before it (see especially at [16]-[21] of its reasons (CB 254-255)). In doing so, the Tribunal placed weight on the evidence provided by the applicant that he and his sponsor had been living separately in different abodes since January 2017 (CB 253 at [10]). The Tribunal also repeatedly expressed its concern that the applicant did not provide any up-to-date evidence supporting the existence of a spousal relationship (CB 254-255 at [16]-[18]).
Contrary to the applicant’s claims, the Tribunal did not err in overlooking relevant evidence. The Tribunal heard from the applicant on the “current state” of his marriage and “revisited his evidence at a prior (separately constituted) Tribunal hearing” (CB 255 at [19]). This is not a case where the Tribunal failed to lawfully consider or failed to engage in an active intellectual process in relation to the applicant’s evidence: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [29]-[47].
It was open to the Tribunal to consider the previous evidence provided by the applicant at the prior Tribunal hearing to be not material in its own determination of whether there was a genuine spousal relationship (as defined in s 5F of the Act). What the Tribunal drew from the evidence and the weight that it places on it was exclusively for the Tribunal to determine: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]-[34]. No jurisdictional error is demonstrated as being present in this regard.
What is a matter of note, though, in relation to these grounds is that, while the Tribunal expressly set out the evidence that the applicant gave to it in relation to what constituted compelling reasons, it does not appear to have made an express finding as to whether or not it was satisfied that compelling reasons existed such that the applicant, in fact, satisfied cl 820.211. The first respondent contends that the Tribunal ought to be taken to have been so satisfied because it then went on to undertake a substantive consideration of whether or not the applicant satisfied cl 820.221, namely, the substantive criteria in relation to the Partner visas.
The first respondent says further that even if the Tribunal did err in failing to make an express finding in relation to its satisfaction in relation to cl 820.211, that this was not a material error such that it goes to jurisdiction because, applying a counterfactual, the decision went in favour of the applicant and could not have realistically resulted in a different decision had any such error been extant. That is because the Tribunal went on to consider the substantive matters in relation to the visa, and, accordingly, it this could not realistically have altered the outcome for the applicant, other than to his detriment. I accept that submission.
There is nothing otherwise before me that persuades me that grounds 1 to 3 of the application have any merit and, as I explained to the applicant, in relation to his submissions about ground 3 and his accident which he had in 2021. The fact that he may have had the misfortune of suffering an accident in 2021 and that he may suffer from depression as a result was not something that could impact the decision of the Tribunal, which was made in November of 2017.
Ground 4
In relation to ground 4 of the application, the applicant was given an opportunity to address the ground separately, it having been translated to him by the interpreter. In response, the applicant said that he asked the Tribunal for some more time in which to enable his sponsor to attend a Tribunal hearing.
I drew the applicant’s attention to the decision of the Tribunal, in particular at [9] of the Tribunal’s decision, which is where the Tribunal records its exchanges with the applicant about the non-attendance at the Tribunal hearing by the sponsor, as follows:
The Tribunal asked if the applicant was claiming that the sponsor’s father’s illness was a compelling reason for the grant of the visa. The applicant said he was not making that claim: rather that the compelling reasons in his case are that he has responsibilities in Australia and in India. He said that in India, his mother is ill with her heart condition and he and his brother come from a poor family. In Australia the applicant said he looks after his step-son and takes care of financial responsibilities. The applicant said he is a cleaning supervisor. Regarding his claimed responsibilities for his stepson, the applicant said he take him places he needs to go such as taking him to sports and dropping him off. He said he shares the responsibility with his wife depending on which of them is at work. The applicant said he and his sponsor both work full-time.
The applicant has had multiple opportunities to file evidence as to what occurred at the Tribunal hearing, in particular, any transcript of it. In the absence of such evidence, the best record of what took place at the Tribunal hearing is the Tribunal’s record of decision. The reasons for decision are silent as to any adjournment request being made or any request for more time in order to enable the sponsor to appear before the Tribunal. I note this issue also intersects with the matter that is raised by [8] of the Affidavit, which I will come to shortly.
On the material before me, there is nothing to indicate that the applicant sought an adjournment or further time to enable the sponsor to appear before the Tribunal. Accordingly, I am not satisfied that there is any error constituted by the Tribunal either failing to consider whether to exercise a discretion to adjourn or unreasonably refusing to adjourn. But, in any event, what is recorded in [9] of the Tribunal’s decision indicates that the applicant had already attempted to persuade the sponsor to attend and she had declined to do so in quite adamant terms, noting that she had also not attended the Tribunal hearing at the first constituted Tribunal. Accordingly, I can see no error in ground 4 in relation to the Tribunal failing to give the applicant further time to enable the sponsor’s attendance.
The applicant otherwise did not speak to ground 4 as pleaded. The ground alleges that the Tribunal took into account an irrelevant consideration. I do not accept that to be so. Section 5F(2)(d) of the Act provides that it is a necessary but not sufficient requirement for meeting the definition of “spouse” that the parties must live together and not live separately and apart on a permanent basis. In this case, the applicant contended that, despite the fact that he and the sponsor had been living separately since January 2017 and his evidence that his wife found him to be very selfish and did not want to live with him but that this was only temporary. The Tribunal did not accept that claim of a temporary situation to be so (CB 253 at [10] and CB 255 at [21]).
In my view, it was open to the Tribunal on the material before it including the applicant’s own evidence given at hearing to conclude that the parties were living separately and apart on a permanent basis. I consider those findings to be open and the applicant’s attempt to reagitate those matters before the Court to be an impermissible attempt at merits review, notwithstanding the fact that I explained to the applicant at the outset of the hearing that this Court was not able to determine the relevant merits of his case for itself.
Turning then to the issue which potentially arises from the applicant’s affidavit. Paragraph [8] of the Affidavit states (errors in original):
The Tribunal was provided with the phone number, which the Tribunal did tried to contact once while on hearing, however no further correspondence was made with my sponsor to confirm the relationship and compelling reasons.
I asked the applicant about this paragraph because I wanted to understand whether he was asserting an error on the part of the Tribunal constituted by not seeking out the sponsor to give evidence and, in particular, whether or not depending on the circumstances in which the Tribunal had been provided with the sponsor’s telephone number, there might be an alleged error pursuant to s 361(3), of the Act.
Section 361(3) of the Act states:
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant's notice but is not required to comply with it.
However, in my view, s 361 of the Act is not engaged. That is because the applicant confirmed to me that by the expression “the Tribunal was provided with the phone number” that he gave the Tribunal the telephone number of the sponsor in the course of the Tribunal hearing at which he appeared, that the Tribunal did try to contact the sponsor, but she had her phone switched off. I asked the applicant whether or not he was asserting by the words “however, no further correspondence was made with my sponsor” he was asserting that the Tribunal had some ongoing obligation to try to contact her.
I am not satisfied that there is any error constituted by a failure to comply with s 361(3) of the Act because the applicant did not request that the sponsor be contacted in writing and within seven days and after he was notified of the Tribunal’s hearing for the purposes of ss 361(2) and 361(2A) of the Act. In any event, it seems that, to the extent the Tribunal was given the telephone number at the hearing, it had regard to the applicant’s wish to contact the sponsor and did attempt to do so.
Having done so, I am satisfied that there was no obligation arising from the Act or any other obligation on the Tribunal to take further steps to pursue the sponsor, particularly having regard to the matter which I have already set out, arise from the applicant’s own evidence as summarised in [9] of the Tribunal’s decision. Accordingly, I am satisfied that there is no error arising out of what [8] of the Affidavit included. In the interests of completeness, when I asked the applicant if he was making an allegation of error by this paragraph, he stated “no” and he said it was “not the fault of the Tribunal”.
By the first respondent’s written submissions is an acknowledgement of an error in [16] of the Tribunal’s decision (see [20] above). Namely, under a heading in relation to financial aspects of the relationship, the Tribunal says that it is not satisfied in relation to social aspects of the relationship, which it deals with later and substantively. The first respondent submits that this is merely a typographic error. I am prepared to accept that submission. However, I note another error on the face of the Tribunal’s decision record where the date of the decision in one place is incorrectly recorded as 3 October 2017 where, in fact, the certification on the same page indicates that the decision was made at 4.45pm on 3 November 2017.
These two typographic errors led me to consider whether or not the Tribunal failed to undertake the review task properly in circumstances where there is a potential cumulative effect to the errors, especially when regard is had to the fact that there is no express finding in relation to whether or not the applicant satisfies whether there were compelling reasons for the waiver of the Schedule 3 criteria.
However I am satisfied that the Tribunal’s decision does bear the correct date in its certification on the front page of the record and that while that typographic error and the typographic error in [16] of the Tribunal’s reasons are unfortunate, they do not satisfy me that the Tribunal has otherwise failed to engage in its task. Having already found no error in relation to the lack of express finding in [12] above relating to cl 820.211, I am similarly not persuaded that taken cumulatively and as a whole, those three errors alter my finding that there is no jurisdictional error in the matter: see Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749 at [21] to [33] per Judge Lucev.
Before concluding, I will note that, when given the opportunity to make submissions in reply, the applicant used that juncture to request that I adjourn to give him further time in order that he could obtain a solicitor to represent him so that he had the chance for “a proper hearing”. That adjournment request was opposed by the solicitor for the Minister who submitted that it was made extremely late in the proceedings, which have been on foot for almost five years now. It was also submitted that the applicant attended by telephone a callover in June of this year and as a result he has had since that time to obtain a solicitor with his mind freshly focused on the fact that the matter would imminently be set down for hearing.
The applicant has also had eight weeks from the time in which he was notified that this matter was specifically listed before me for hearing today in which to find a solicitor. I asked the applicant what, if any, steps he had taken in regard to seeking legal representation, and he indicated that he had, in fact, found a lawyer many years ago, an Indian gentleman who he says appeared for him when the matter was last in Court, which, from the Court’s file, appears to have been at a callover in 2018, although the applicant said that this may have been at the first Court date.
In any event, this satisfies me that the applicant does, in fact, have access to at least the details of and has had engagement with a solicitor in relation to these specific proceedings. As a result, if he wished to be represented today, he could have achieved this. When I pointed that out to the applicant, he referred back to his earlier submissions about having had an accident in 2021, said that he had been suffering from depression, and said that he had not been able to afford a lawyer.
While I have some sympathy for that position, the applicant has had, in my view, ample time to prepare this matter. By his own submissions, he has engaged not only a lawyer, but also a migration agent at some point in order to prepare his grounds. He is not without any knowledge as to how to obtain such services. If he wished to make an application for an adjournment and set out proper steps that he was taking and seek a brief further time in which to be legally represented, the time to do so was not only not towards the end of proceedings which have been on foot for almost five years, but also at the beginning of this hearing, and not at its conclusion.
In any event, I am not satisfied that further delay in these proceedings and a re-hearing would have utility having regard to how much time has passed since the commencement of these proceedings. I am not satisfied there would be utility in such an adjournment, and I am not satisfied that it would be in the interests of the administration of justice to have this matter go over to another hearing event. I gave those reasons briefly to the applicant in the course of the hearing and he has now heard them again. For those reasons, I refused the adjournment request when it was made during the submissions in reply, and the matter has proceeded to determination.
I am satisfied that there is no jurisdictional error in this matter. That being so, it is a privative clause decision and it must be dismissed and I will so order.
Consequent upon my dismissal of the matter, the solicitor for the Minister sought a cost order fixed in the sum of $5,400. I am satisfied in this matter that it is appropriate that there be a costs order made. I asked the applicant whether or not he had anything to say about that, and he did not. In respect of the sum sought, the applicant pointed out that he has no job and asked how he could pay it. I explained to the applicant the concept of a debt to the Commonwealth and also that he would soon receive correspondence which would indicate to whom at the Department he could speak in order to discuss either time to pay or a reduction. However, I am satisfied that, in the circumstances of this case, the amount sought by the Minister is reasonable. Accordingly, I will make the orders.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 16 September 2022
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