SUKHRAJ v Minister for Immigration

[2017] FCCA 3292

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUKHRAJ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3292

Catchwords:

MIGRATION – Categories of visas – family migration – spouses – conduct of review – credibility of applicant.

Legislation:

Migration Act 1958 (Cth), ss.5F, 375A

Cases cited:
Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20

Applicant: SINGH SUKHRAJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 649 of 2017

Judgment of: Judge Jarrett

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Brisbane

Delivered on: 11 December 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Minter Ellison

The Second Respondent enters a submitting appearance

ORDERS

1. The application filed on 12 July 2017 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 649 of 2017

SINGH SUKHRAJ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL  

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the first respondent to refuse the applicant a spouse visa. 

2. The central issue before the Tribunal was whether the applicant was able to satisfy the Tribunal that he was in a spousal relationship as that term is defined in s.5F of the Migration Act1958 (Cth) with his visa sponsor. The Tribunal came to the conclusion that he could not and it rejected the applicant’s claims on the basis of his credibility. It determined that the applicant was not in a spousal relationship, for the purposes of the Act, with his sponsor.

3. The applicant has brought these judicial review proceedings against the Tribunal’s determination.  He has filed an application in which he sets out three grounds of review, but he has not filed any outline of submissions that supports those grounds of review.  The applicant represented himself in the hearing before me, but was unable to explain to me how it was that the Tribunal had come to make a jurisdictional error.  His submissions were focused on the facts of the case and the Tribunal’s inability to accept certain matters from him rather than certain matters from his sponsor.

4. His grounds of appeal set out in his originating application assert that the Tribunal did not conduct a proper review in that it failed to act in accordance with the substantial justice and merits of the case or that it did not act in a way that was fair and just.  His second ground asserts that the Tribunal misunderstood or misapplied the law, or otherwise failed to rely exclusively on the relevant facts and information without specifying what those are.

5. He asserts that the Tribunal took into account irrelevant materials and considered irrelevant facts, information and materials, but he does not specify what those materials were either.  Finally, he asserts that the Tribunal’s reasoning is unfairly biased and based on unsound reasoning.  It is within that ground of review that he asserts that the Tribunal made an error and he specifies the error as being an error about a finding that was made with respect to the identity of a person that his wife had gone to New Zealand to visit, as well as making complaints about the weight that the Tribunal attached to various parts of the evidence.  To state ground 3 in those terms, demonstrates that the applicant’s complaint about the Tribunal’s decision is really one about the merits of it. 

6. For the reasons that follow, the application will have to be dismissed, notwithstanding the very interesting argument that arises concerning a certificate issue pursuant to s.375A of the Migration Act.

7. The applicant is a national of India.  He is about 30 years of age and arrived in Australia in 2009 on a student visa.  He met his sponsor, a Ms Sutherland, in July of 2011.  They were engaged a short time after that and began living together.  They married in November, 2011.  In January, 2012 the applicant applied for a partner subclass 801 visa.  The visa was refused in March of 2016 by a delegate of the first respondent.  The delegate determined that she was not satisfied that the applicant met the time of decision criterion that required the delegate to be satisfied that the applicant and his sponsoring spouse were in a relevant relationship.  The delegate came to the conclusion that they were not in the relevant relationship, notwithstanding that they were married.

8. The Tribunal was asked to review the delegate’s decision. There was a hearing before the Tribunal and, on 17 June this year, the Tribunal affirmed the delegate’s decision. As I have already indicated, the Tribunal concluded that it could not be satisfied that the relationship between the applicant and his sponsor was a genuine and continuing relationship of the type required under the Migration Act and Regulations. It did not consider that the applicant and his sponsor had a commitment to a shared life as a husband and wife. The Tribunal made a positive finding, as I read the Tribunal’s reasons, that the relationship, or claimed relationship, was a sham.

9. The Tribunal’s decision is lengthy and detailed.  There has been considerable attention paid to the evidence led by the applicant for the purposes of his application.  It cannot be said, in my view, that the Tribunal has misunderstood any of the evidence placed before it by the applicant and the Tribunal has considered that evidence and the applicant’s claims very carefully. 

10. There are two aspects to the matter, however, that need special mention. They are the two aspects of evidence or information that came to the attention of the Tribunal under a s.375A certificate. The certificate purported to cover two tranches of documents described as folios 170-175 in the departmental file and folios 1-10 in the departmental file.

11. As to the first tranche of documents, the Tribunal concluded that the certificate issued in respect of those documents was invalid. The Tribunal’s conclusion about that was clearly correct. The certificate did not state the public interest reason on the face of the certificate said to engage s.375A of the Act. The Tribunal recognised that and, accordingly, made the documents that were the subject of that part of the certificate available to the applicant so that he could consider them and make submissions about them. The documents concerned a visit undertaken by what is described as “integrity officers” to the applicant’s village in India.

12. The second aspect of the certificate, folios 1-10, deals with what is described in the certificate as:

    An anonymous allegation received by the department of a contrived relationship between the applicant and sponsor and cash payment of $30,000 to the sponsor.

13. The Tribunal thought that the certificate in respect of those documents was valid.  It was wrong.  Having regard to the remarks made by the Federal Court in Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20 at paragraph 47, it cannot be said that the certificate was valid. It did not identify, on its face, the public interest that was necessary to engage s.375A. The certificate does nothing more than recite the nature of the documents that are said to be protected by it.

14. It was argued by Mr McGlade, who said all he could say in support of the proposition that the certificate was valid, that one might infer from the description of the documents themselves the public interest that might be attached to the protection of the documents and so s.375A was properly engaged, but, in my view, these things ought not be left to inference. The public interest reason must be specified in the certificate itself. So says Burton.  It was not so specified; the certificate was invalid. 

15. But a finding about that is not necessary to determine this application, because, again, as Mr McGlade pointed out, the Tribunal determined to give no weight at all to the documents that were protected by the certificate.  In paragraph 66 of the Tribunal’s reasons, the Tribunal says this:

    However, given that the allegation was made anonymously, the Tribunal advised the applicant that it would place no weight upon it and invited his comment.  The registered migration agent submitted his agreement that no weight should be placed upon such evidence and, accordingly, the Tribunal has placed no weight upon it.

16. Having regard to that, and notwithstanding the invalidity of the certificate, I accept the submissions for the first respondent that there is no jurisdictional error identified in this case by reason of the invalid certificate.  There has been no affect upon the outcome of the application before the Tribunal by reason of the Tribunal’s erroneous view that the certificate was valid. 

17. For those reasons, in my view, this application simply seeks to cavil with the merits of the Tribunal’s decision.  That is an impermissible course.  There is no jurisdictional error revealed by the reasons of the Tribunal and the application must be dismissed.

    RECORDED:  NOT TRANSCRIBED

18. The Minister asks for his costs.  The applicant sought an adjournment for the purposes of getting legal advice presumably about making submissions in respect of costs.  I have refused the adjournment, because I do not think there would be any purpose in granting it. 

19. Costs ordinarily ought to follow the event unless there are special circumstances in the case, which suggest that the usual rule ought not be applied.  The applicant did not suggest that there are any particular circumstances here that might mean that he ought not pay the Minister’s costs.  It is difficult to envisage any.

20. Sometimes it is said in applications like this that an applicant cannot afford to pay the costs that are sought, but, of course, impecuniosity rarely, if ever, amounts to special circumstances sufficient to displace the usual rule.  It seems clear enough, in my view, that costs should follow the event. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 December, 2017.

Date: 22 December 2017