Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 438
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 438
File number: SYG 859 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 17 May 2024 Catchwords: MIGRATION – Skilled-Regional Sponsored (Subsequent entrant) (Subclass 489) visa – application for an extension of time – futility – application dismissed Legislation: Migration Act 1958 (Cth) ss 5CB, 477
Migration Regulations 1994 (Cth) cl 489.211, reg 1.09A
Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
WZAWB v Minister for Immigration & Anor [2016] FCCA 1345
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 9 May 2024 Date of hearing: 9 May 2024 Place: Parramatta Solicitor for the Applicant: Dobbie & Devine Immigration Lawyers Counsel for the Respondent: Mr Reynolds Solicitor for the Respondent: Clayton Utz ORDERS
SYG 859 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LOVEPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the amount of $8371.30.
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
JUDGE D HUMPHREYS
INTRODUCTION & BACKGROUND
The applicant is a citizen of India. The applicant arrived in Australia in July 2012 on a Student (Subclass 571) visa.
In 2013, the applicant married an Australian citizen, Ms Bicket. The applicant applied for a Partner (Subclass 820) visa( “ Partner visa”) sponsored by Ms Bicket on 30 August 2013.
On 4 November 2016, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the delegate”) refused to grant the Partner visa on the basis that the applicant had not satisfied the delegate that he was in a genuine and continuing relationship with Ms Bicket.
On 18 November 2016, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of his application for a Partner visa. That review application was refused on 6 October 2017. The applicant then filed an application for judicial review of the Tribunal’s decision. He ultimately discontinued his application for judicial review when the matter reached the Federal Court of Australia.
On 27 January 2018, the applicant obtained a “Relationship Certificate” with a Ms Kohli, through the NSW Registry of Births, Deaths, and Marriages.
On 1 March 2018, the applicant applied for a Skilled-Regional Sponsored (Subsequent Entrant) (Subclass 489) visa (“the visa”) whilst he was out of the country. The applicant applied for this visa on the basis that he was a member of Ms Kohli’s family unit as her de facto partner.
On 21 May 2019, the delegate refused the application for the visa. This decision was sent to the applicant under the cover of a letter with the same date informing the applicant that he could seek a review of the delegate’s decision in the Tribunal among other things. The respondent submitted that the reference in the letter to the applicant’s review rights in the Tribunal was wrong.
On 6 June 2019, the applicant sought review of the decision in the Tribunal. On 6 March 2020, the Tribunal held that it did not have jurisdiction to review the decision.
The applicant seeks leave to apply for an extension of time in order to bring an application for review of the 21 May 2019 refusal by the Tribunal in this Court.
For the reasons set out below, the application for extension of time must be dismissed with costs.
PRELIMINARY ISSUE – EXTENSION OF TIME TO LODGE THE APPLICATION FOR JUDICAL REVIEW
The decision of the delegate was made on 21 May 2019. The applicant filed his application for judicial review on 8 April 2020. This was 323 days after the decision and 288 days outside the 35-day time limit imposed by s 477(1) of the Migration Act 1958 (Cth) (“the Act”).
Pursuant to s 477(2) of the Act, the Court may extend the time for the making of an application if satisfied that it is necessary to do so in the interests of the administration of justice.
In relation to this application, the applicant relied on WZAWB v Minister for Immigration & Anor [2016] FCCA 1345 at [49]-[53] to support that it is in the interests of the administration of justice for the extension of time to be allowed.
It is only if the precondition that the Court is satisfied that an extension of time is “necessary” in the interests of the administration of justice that an order for extending time should be made: (see; SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] per Mortimer J). It is a discretionary matter for the Court, taking into account the following considerations (see; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]):
a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
b) Whether there is any prejudice to the other party; and
c) Whether the applicant’s substantive application for judicial review is sufficiently arguable to justify the granting of an extension of time.
In addition to the above, the longer the delay the more persuasive the reason for the delay must be.
The Court, however, should not exercise its discretion to extend time, even for a short period, if the application has no prospects of success. The substantive application should have such prospects of success so as not to render the extension of time as an exercise in futility.
The Court is not required to establish that the application will succeed at final hearing. The grounds of review should be examined on a reasonably impressionistic level to see whether there are reasonable prospects of success: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]).
The applicant submitted in written submissions that it is in the interests of the administration of justice that the Court allow an extension of time in this case as the grounds of review in the Amended Application have substantial merit.
The reason for the delay in the applicant filing his application was due to an error made by the delegate notifying the applicant that he was entitled to seek merits review from the Tribunal.
As a result of that letter, the applicant acted on the information and sought review to the Tribunal. After the Tribunal found that it did not have jurisdiction, the applicant sought relief with this Court within 35 days of that finding.
The applicant submitted that the error made by the delegate regarding the rights to review held by the applicant is erroneous. The impact of the error was substantial as the applicant cannot make a combined application with Ms Kohli as she is now a (Subclass 887) visa holder. The applicant stressed that his opportunity to make a combined application with Ms Kohli was missed due to this error.
The impact on the decision was “substantial” to the applicant as the delegate’s findings “diminish the nature of his relationship with Ms Kohli” and are averse to his intentions to make a Partner visa application in the future.
In response to the respondent’s 2020 submissions where the issue of futility was raised, the applicant submitted that because of reputational interests, there is still utility in the decision being quashed. The applicant reasons that, if the decision is quashed, the impugned reasoning behind the delegate’s adverse finding as to the applicant’s relationship with Ms Kohli “also falls away” and it would not be relevant for any future determinations for a Partner visa.
In relation to the explanation for the delay, the respondent submitted that there is a “good explanation for the delay” as the applicant had been erroneously informed that he could apply to the Tribunal.
The respondent contends that the application for extension of time by the applicant is now “futile” and “pointless” as the sponsor for the applicant’s visa no longer holds a Skilled-Regional Sponsored visa themselves. The effect of this is that the applicant would no longer satisfy the criteria for the visa as he applied for in the instance that the Court ordered the delegate’s decision to be quashed.
The respondent submitted that Ms Kohli no longer holds one of the five types of visas, named under cl 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), that would satisfy a decision maker that the applicant is a member of her family unit.
The respondent submitted that Ms Kohli is no longer able to apply for any of those visas mainly because new applications for the classes or subclasses of visas cannot be lodged.
Ms Kohli would require an invitation by the respondent to apply for a (Subclass 489) visa to which there is no evidence that she has been invited to do so. It would also be highly unlikely that she would be sent this invitation due to her being granted a permanent (Subclass 887) visa.
Due to these reasons, the applicant’s visa application would most likely fail.
The respondent’s contention regarding the extension of time is that the Court should refuse to grant the applicant a remedy in this case as it would be “pointless”.
THE DELEGATE’S DECISION
The delegate assessed the application against the secondary criteria for a (Subclass 489) visa and made findings that the applicant did not meet the criteria.
Clause 489.311 of the Regulations was not met. This clause provides that:
The applicant is a member of the family unit of a person (the primary applicant) who holds any of the following visas granted on the basis of satisfying the primary criteria:
(a) a Skilled-Independent Regional (Provisional) (Class UX) visa;
(b) a Skilled-Designated Area-sponsored (Provisional) (ClassUZ) visa;
(c) a Subclass 475 (Skilled-Regional Sponsored) visa;
(d) a Subclass 487 (Skilled-Regional Sponsored) visa;
(e) a Subclass 489 (Skilled-Regional (Provisional)) visa.
Section 5CB further defines the criteria for determining a de facto relationship:
De facto partners
1. For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
2. For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) Iive together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
3. The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
4. For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
Importantly, the delegate must be satisfied that the relationship is genuine and continuing, the persons have a mutual commitment to a shared life to the exclusion of all others and both parties are living together (or at least not living apart on a permanent basis).
The applicant stated in his 1 March 2018 visa application that he was in a de facto relationship with Ms Kohli, noting that the relationship began on 27 January 2018, and he provided a NSW Relationship Certificate as well.
On 16 March 2018, further information was requested from the applicant as evidence of his relationship with Ms Kohli. The following was provided:
(a)Federal Circuit Court Divorce Order between Lovepreet Singh and Melanie Alana Bicket dated 1 November 2017;
(b)Electricity bills for Lovepreet Singh spanning 2016 to 2017 listing Radhika Kohli as a joint account holder;
(c)Internet bills for Lovepreet Singh for 2017;
(d)Joint bank account statements spanning 2016 to 2018 Joint hotel bills for 2017;
(e)Joint lease agreements for 1/27 Elizabeth Street, Dubbo NSW 2830 for the period of 09 February 2017 until 30 November 2018;
(f)Movie tickets for 2 adults - names not specified;
(g)Trainlink bookings for 2017;
(h)A copy of the New South Wales Relationship Certificate dated 27 January 2018 already provided;
(i)A superannuation document for Lovepreet Singh listing Radhika Kohli as beneficiary dated February 2018;
(j)A superannuation document for Radhika Kohli listing Lovepreet Singh as beneficiary dated December 2017;
(k)A statutory declaration signed by both Lovepreet Singh and Radhika Kohli dated 17 April 2018; and
(l)3 statutory declarations from friends regarding the relationship.
After requesting further evidence of the relationship, two new documents were provided:
(a)Joint lease agreement dated 31 May 2018 for 1/27 Elizabeth Street, Dubbo NSW 2830; and
(b)Copies of drivers licences for Lovepreet Singh and Radhika Kohli.
After undertaking checks to verify the applicant’s claims, a number of concerns were identified [12]:
· The applicant had previously lodged a UK Partner (Temporary) and BS Partner (Residence) visa on 30 August 2013 with Melanie Alana Bicket being the primary visa holder. The application for the UK Partner (Temporary) and BS Partner (Residence) was refused on 4 November 2016 due to not sufficiently demonstrating that the applicant was the spouse or partner of the primary visa holder.
· A statutory declaration provided with this visa application signed by both the applicant and Radhika Kohli declares "we committed to share life on 16 November 2016 and started living together since same day". Two days later, on 18 November 2016, the applicant lodged a review with the Administrative Appeal Tribunal regarding the refusal of the UK Partner (Temporary) and BS Partner (Residence) visa with Melanie Alana Bicket. The decision to refuse was affirmed by the Administrative Appeal Tribunal on 9 October 2017.
· A Federal Circuit Court of Australia order dated 1 November 2017 was provided with this visa application finalising the divorce between Lovepreet Singh and Melanie Alana Bicket. Two days later, on 3 November 2017, the applicant lodged a review with the Federal Court regarding the refusal of the UK Partner (Temporary) and BS Partner (Residence) visa with Melanie Alana Bicket.
· The Department attempted to call the applicant twice on 6 September 2018, 7 September 2018, 12 September 2018 and 17 September 2018 respectively to discuss the SP 489 Subsequent Entrant application. However, the applicant did not answer any of these calls.
· On 27 November 2018 the applicant withdraw the review with the Federal Court regarding the refusal of the UK Partner (Temporary) and BS Partner (Residence) visa with Melanie Alana Bicket.’
The Department received further documents in May 2019, after having invited the applicant to comment on the information that the Department had reproduced.
In assessing the applicant’s relationship with the primary visa holder, Ms Kohli, the delegate placed more weight on the relationship as a whole rather than the Relationship Certificate provided.
In regard to the financial aspects of the relationship, they considered the joint ownership of assets, joint liabilities and the extent to which the pair had pooled their financial resources and legal obligations each party had to the other. With all the evidence provided, the delegate found there was little evidence of a financial commitment between the parties. The delegate noted that the applicant and Ms Kohli did have a joint bank account but there did not appear to be any larger financial commitments.
In assessing the nature of the household, the delegate was satisfied that the applicant and primary visa holder resided in the same household at 1/27 Elizabeth Street Dubbo, NSW 2830.
In regard to the social aspect of the relationship, the delegate had regard to photographs provided by the applicant. They placed “little weight” on them however, as they were not date stamped and the identity of the persons in the photographs could not be linked back to the statutory declaration provided from friends. The statutory declarations from friends and from the applicant and the primary visa holder were also given little weight as they were considered to be “easily obtainable”. The letter of explanation dated 11 May 2019 could not be deemed independent third party verifiable evidence. Further, the delegate considered the movie tickets and placed little weight on these as there were no names specified.
The nature of the applicant and primary visa holder’s commitment to each other was assessed however, a check of the Department’s systems revealed “substantial concerns”. The applicant lodged a review with the Tribunal on 18 November 2016 for the Partner visa application with Ms Bicket. In the applicant’s letter of explanation from 11 May 2019, he stated that he had declared during a hearing with the Tribunal that his relationship with Ms Bicket ceased in August 2016. The applicant further revealed that his commitment to Ms Kohli had started on 16 November 2016, the same day he started living with her. After the Tribunal affirmed the decision to refuse the Partner visa, the applicant lodged an appeal with the Federal Court of Australia on 3 November 2017.
These instances revealed to the delegate that the applicant had only lodged review applications with the Tribunal and Federal Court in order to remain in Australia and it was not a genuine intent. Further, the applicant had declared in his letter “On 18th November, I lodged a review with the Administrative Appeal Tribunal regarding the refusal of my partner visa application, by doing this we get the time to stay together”. This revealed to the delegate that the applicant had been trying to purposefully extend his time in Australia rather than holding “a genuine intent to overturn the decision”.
The delegate noted that there was conflicting information as to whether the relationship commenced on 16 November 2016 or 27 January 2018. Further, there are concerns that in 2016, Mr Singh was in relationships with both Ms Bicket and Ms Kohli at the same time which casted doubt on his “mutual commitment to a shared life with Radhika Kohli to the exclusion of all others”.
The delegate found that the applicant’s relationship with the primary visa holder did not meet reg 1.09A. They refused to grant the visa as the applicant failed to meet cl 489.311 of the Regulations.
GROUNDS OF JUDICIAL REVIEW
The applicant’s four grounds of judicial review are contained in an Amended Application filed on 3 September 2020. The grounds are as follows (less particulars):
1.The decision is infected with actual bias;
2.The decision is arbitrary, illogical, or irrational, or made in the absence of probative evidence or legally unreasonable;
3.The Respondent’s delegates failed to accord the Applicant procedural fairness; and
4.The Respondent’s delegate failed to have regard to a relevant consideration or took into account an irrelevant consideration.
THE APPLICANT’S SUBMISSIONS
The applicant only presses grounds one, two and four in their written submissions.
Ground One
The contention in ground one of the application is that the delegate displayed actual bias as they had predetermined that they should give little weight to supporting evidence based on how obtainable the evidence would be. The applicant submitted that the delegate did not state what the measure of easily obtainable evidence was and did not consider the nature of the evidence itself or the veracity of the claims set out in the statutory declarations.
The applicant supports his contention with the matter of Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 446 [67] where Gummow A-CJ, Hayne, Crennan and Bell JJ warned against lightly making allegations of actual bias as it can be confused with apprehended bias when in fact both require different inquiries. The applicant maintained the allegation that the delegate’s decision was vitiated by actual bias.
Ground Two
Counsel for the applicant submitted that there were four particulars contained within ground two, the first particular overlaps with ground one and the second particular is not pressed.
Ground 2(iii) asserts that the delegate’s finding as to the conflicting information surrounding the applicant’s relationship with Ms Kohli is legally unreasonable. The delegate found that they were concerned the applicant was in a relationship with Ms Bicket and Ms Kohli at the same time. The applicant submitted, however, that he had obtained a divorce order from his marriage to Ms Bicket on 1 November 2017 after the period of 12 month period of separation and had commenced a relationship with Ms Kohli on 16 November 2016. On 27 January 2018, he and Ms Kohli registered their de facto relationship. The applicant submitted that there is no evidence to point to the applicant’s commitment to Ms Bicket and Ms Kohli simultaneously.
Ground 2(iv) is a continuation of Ground 2(iii), that there is no conflict in regard to the commencement of the relationship between the applicant and Ms Kohli. The applicant alleges that the conflict finding was illogical, irrational or legally unreasonable; (see: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, per Allsop CJ at pp3 [2] - 6 [13]).
The applicant submitted that the delegate did not have a basis to make this finding and therefore the decision was infected with jurisdictional error.
Ground Four
Under ground four, the applicant submitted that the delegate did not have regard to a relevant consideration, being tax returns for the applicant and Ms Kohli for the 2017-2018 financial year. According to the applicant, those tax returns form evidence that the pair were in a de facto relationship. The delegate’s adverse finding against them demonstrates a failure to have regard to the evidence that was before them despite being required to by s 5CB (3) of the Act and reg 1.09A.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent sought to rely on their submissions filed on 15 October 2020.
Counsel for the first respondent submitted that ground one is without merit as it does not demonstrate “cogent proof” that the delegate acted with a closed mind or had predetermined the issues before them.
The applicant’s contention that the delegate only gave little weight to the statutory declarations does not reach the bar to constitute bias. It was submitted that, the delegate in fact did give weight to the statutory declarations, but when balanced against the other evidence before them, decided to give it “little weight”.
The delegate considering the declarations “easily obtainable” was an observation open to the delegate to make and within their remit to take into account in prescribing weight to that piece of evidence.
In relation to ground two, the first respondent contended that the three issues identified by the applicant do not satisfy the high standard to make out that the decision was arbitrary, illogical or irrational, or made in the absence of probative evidence; (see: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [40] – [47]).
The first respondent submitted that the delegate’s finding that the statutory declarations were “easily obtainable” was normal to make as they are commonly required to distinguish between persuasive and less persuasive evidence by “reference to everyday experience”. Further, the applicant had made “brief” and “non-descriptive” observations of the applicant’s relationship with Ms Kohli that are contained in the statutory declarations. Therefore, the finding was open to the delegate to make.
In considering whether there was a failure to consider a relevant consideration under ground four, the delegate was not legally bound by reg 1.09A(3)(c) of the Regulations to take the tax returns into consideration; (see: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). The applicant’s matter does not fall under reg 1.09A(2) of the Regulations, therefore the first respondent submitted that the delegate was not bound to consider in those circumstances. Regulation 1.09A(4) directs that the decision-maker “may” consider the circumstances mentioned in sub-reg (3).
The first respondent submits that no error arises in this case as the applicant’s contention as to the delegate’s legal duty to take into account reg 1.09A(3)(c) of the Regulations is “wrong”. Further, it was open to the delegate to find that in relation to this consideration, little weight should be afforded to it.
CONSIDERATION
At the commencement of the hearing on 9 May 2024, the applicant’s legal representative was pressed as to whether or not he conceded that, given Ms Kohli was unable to apply for any of the relevant visas, the application for judicial review was futile.
The only matter he could point to was the reputational damage to the applicant of findings that he was effectively in two relationships at the same time. If the Court rejected that submission, the legal representative for the applicant conceded the application was futile.
The Court does not consider that reputational damage is a matter that is sufficient for the Court to grant the relief sought, given the discretionary nature of constitutional writs, in circumstances where, due to the passage of time, even if the matter were remitted to the Tribunal the result would be the same.
In these circumstances it is not necessary to consider the grounds of judicial review relied upon by the applicant. The issue of futility renders them otiose.
In these circumstances, the Court finds that as the grounds of judicial review have no merit as a result of the futility issue, an extension of time should not be granted for the lodgement of the application for judicial review.
CONCLUSION
Accordingly, the application is dismissed.
The Court notes the agreement between the parties that in this event the applicant should pay the respondents legal costs fixed in the sum of $8,371.30.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 17 May 2024
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Immigration Law
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Judicial Review
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Futility
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