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Singh v Minister For Home Affairs & Anor [2018] FCCA 1999 (24 July 2018)

Last Updated: 27 July 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR


Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.


Legislation:
Federal Circuit Court Rules 2001 (Cth)
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
Migration Act 1958 (Cth), ss.5F, 359AA, 359A, 375A, 477
Migration Regulations 1994 (Cth)

Cases cited:
AVO15 v Minister for Immigration [2017] FCA 566
He v Minister for Immigration [2017] FCAFC 206
Minister for Immigration v Singh [2016] FCAFC 183


Applicant:
SURJEET SINGH

First Respondent:
MINISTER FOR HOME AFFAIRS

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
SYG 496 of 2018

Judgment of:
Judge Driver

Hearing date:
24 July 2018

Delivered at:
Sydney

Delivered on:
24 July 2018


REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:
Ms A Douglas-Baker

Solicitors for the Respondents:
Sparke Helmore


INTERLOCUTORY ORDERS

(1) Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application is extended up to and including 26 February 2018.
(2) Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
(3) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 496 of 2018

SURJEET SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

  1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 January 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a temporary partner visa.
  2. Background facts relating to Mr Singh’s application for the visa and the decision of the Tribunal on it are set out in the Minister’s outline of legal submissions filed on 18 July 2018.
  3. On 7 October 2011 Mr Singh applied for the visa on the basis of his marriage to his sponsor, Ms Jasmin Lee Nolan, an Australian citizen.[1]
  4. Mr Singh and Ms Nolan attended an interview before the delegate on 3 September 2013 and on 6 November 2013 the delegate refused to grant the visa.[2]
  5. On 9 June 2015 the Migration Review Tribunal (MRT) affirmed the delegate’s decision[3] but that decision was quashed on 20 July 2017 and a writ of mandamus issued pursuant to consent orders made by Justice Burley.[4] The Court noted that the Minister had conceded that Mr Singh had been denied procedural fairness by the MRT in circumstances where a delegate of the Minister had issued a certificate pursuant to s.375A of the Migration Act 1958 (Cth) (Migration Act), the existence of the certificate was not disclosed to Mr Singh in the course of the review conducted by the MRT and the document the subject of the certificate was relevant, or potentially relevant, to the issues arising on the review by the Tribunal.[5]
  6. On 18 January 2018 the Tribunal, after having conducted a second review of the delegate’s decision, affirmed the delegate’s decision.[6]
  7. Mr Singh filed his application for review on 26 February 2018, being four days out of time.[7] The Court has discretion to extend time. The Minister contended that Mr Singh’s explanation as to why he could not file on time was inadequate. The Tribunal’s decision was sent to Mr Singh on 19 January 2018 at the email address Mr Singh had nominated in his application for review.[8] The Minister did not, however, contend that he would suffer any prejudice should the Court exercise its discretion to extend time. While the Minister submitted that the grounds of the substantive application lacked sufficient merit so as to warrant an extension of time being granted, I did grant an extension of time, having regard in particular to the issue arising in relation to the s.375A certificate.
  8. It was a requirement at the time of application[9] and the time of decision[10] that Mr Singh satisfy clause 820.211(2)(a) of the Migration Regulations 1994 (Cth) (Regulations) (relevantly, that the applicant is the spouse or de facto partner of an Australian citizen) and the definition of “spouse”.
  9. “Spouse” was defined in s.5F of the Migration Act at the time of the Tribunal’s decision[11] as follows:
  10. Regulation 1.15A of the Regulations provided as follows:
(2) If the Minister is considering an application for:
(3) The matters for subregulation (2) are:
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

The Tribunal’s decision

  1. Mr Singh appeared before the Tribunal on 16 January 2018 to give evidence. Ms Nolan, however, did not appear before the Tribunal because she was in New Zealand.[12]
  2. At the commencement of the hearing the Tribunal informed Mr Singh of the existence of the s.375A certificate, found that the certificate had been validly issued and informed Mr Singh that the certificate prevented the Tribunal from disclosing to Mr Singh information because it related to third parties and Departmental investigative processes. The Tribunal however informed Mr Singh that the adverse information on which it intended to rely was not covered by the certificate.[13]
  3. The Tribunal found that Mr Singh and Ms Nolan were validly married and therefore met the requirements of s.5F(2)(a) of the Migration Act.[14] The Tribunal then proceeded to consider, as it was required to do,[15] each of the matters prescribed in regulation 1.15A(3) for the purposes of determining whether Mr Singh and Ms Nolan met the conditions specified in s.5F(2)(b), (c) and (d) of the Migration Act.[16]
  4. The Tribunal found that there was no evidence that Mr Singh and Ms Nolan had any joint real estate, financial or other major assets,[17] and that there was no evidence that the parties had any joint liabilities.[18] The Tribunal found that although the parties had a joint account there were no transactions on that account and there was therefore no evidence of the pooling of financial resources. The Tribunal did not accept Mr Singh’s explanations for the absence of such evidence, those explanations being that Mr Singh had lost his work rights and he had previously given his wife money in cash.[19]
  5. The Tribunal found that as Mr Singh and Ms Nolan had not been living together since 2015 there was no evidence that the parties shared day-to-day household expenses,[20] or had any joint responsibility for the care and support of children,[21] or the sharing of housework.[22]
  6. The Tribunal had regard to statements provided by Mr Singh and Ms Nolan and some photographic evidence of Mr Singh and Ms Nolan on their wedding day and together in a restaurant but found that this constituted “little evidence” that the parties represented themselves to others as a married couple and that no evidence had been submitted since 2015 as would provide current information as to the social aspects of the parties’ spousal relationship.[23] Moreover, the Tribunal found that Ms Nolan’s Facebook page (the contents of which were put to Mr Singh during the hearing) indicated that despite Mr Singh’s evidence to the contrary, Ms Nolan did not appear to be in an exclusive relationship with Mr Singh.[24] Rather, Ms Nolan’s Facebook page suggested that Ms Nolan was in a relationship with another male person, that she socialised with him and his family and that Mr Singh was not present at those times.[25]
  7. The Tribunal found that Mr Singh and Ms Nolan had been married since 2011,[26] but that the evidence before it was to the effect that Mr Singh and Ms Nolan lived separately in two different states (Mr Singh in Sydney and Ms Nolan in Brisbane) and that they have done so since 2015.[27] In light of these matters, and the absence of any other evidence, the Tribunal found that there was no evidence of the degree of companionship and support that each of Mr Singh and Ms Nolan drew from each other. Moreover, Ms Nolan had failed to attend hearings to give evidence and otherwise support Mr Singh. These matters caused the Tribunal to conclude that neither party drew companionship and support from the other.[28] For these reasons, the Tribunal found that neither party sees the spousal relationship as a long-term relationship.[29]
  8. The Tribunal found that Mr Singh did not have a mutual commitment to a shared life with Ms Nolan to the exclusion of all others, or a genuine and continuing relationship, and that Mr Singh and Ms Nolan live separate and apart on a permanent basis.[30] Accordingly, the Tribunal found that the requirements of s.5F(2) were not met at the time of the visa application and at the time of decision.[31] The Tribunal therefore concluded that Mr Singh did not meet clause 820.211(2)(a) and clause 820.221.[32]

The present proceedings

  1. These proceedings began with a show cause application filed on 26 February 2018. Mr Singh continues to rely upon that application. There are three grounds in it:
(errors in original)
  1. The application is supported by a short affidavit filed with it which I have received. I also have before me as evidence the court book filed on 16 April 2018 and the affidavit of Andrew Lyall Keevers filed on 18 July 2018 to which is exhibited a confidential bundle of documents which I have examined.
  2. Only the Minister filed written submissions in advance of today’s hearing. Mr Singh had received those submissions but had not read them. In the circumstances I adopted the procedure of having counsel for the Minister present her submissions first and then giving Mr Singh the opportunity to respond. His submissions dealt with the merits of his claim for the visa and what he sees as the unfairness of the procedure adopted by the Tribunal, in particular, in relation to the material obtained from the Facebook account. Mr Singh seeks the opportunity to obtain legal assistance to argue this case more fully at a final hearing.
  3. Having considered the matter in the light of the parties’ submissions, I have come to the conclusion that Mr Singh is unable to demonstrate an arguable case of error by the Tribunal.

Ground 1 – denial of procedural fairness (s.375A certificate) and breach of s.375A

  1. The most significant issue concerns the certificate issued pursuant to s.375A of the Migration Act. The Tribunal dealt with that at [11] of its reasons:[33]
  2. The first ground asserts that Mr Singh was denied procedural fairness as the Tribunal relied upon an invalid s.375A certificate and thereby breached s.375A of the Migration Act.
  3. Two things may be said about the Tribunal’s treatment of the certificate. The first is that the certificate, which is reproduced on page 153 of the court book, appears on its face to be valid or at least arguably valid in that it advances a basis for making a claim of public interest immunity in relation to the documents covered by it. Having examined those documents, I have come to the firm view that the Tribunal was entitled to find, as it did, that the certificate was valid.
  4. Secondly, the Tribunal indicated to Mr Singh at the hearing that while it was prevented from disclosing the information covered by the certificate, the information which was adverse to Mr Singh’s claims was not covered by the certificate. That finding by the Tribunal is plainly correct. The adverse and contentious material for the purposes of the Tribunal’s review was the information derived from the Facebook account. That material was not covered by the certificate. The documents covered by the certificate certainly disclosed the Minister’s Department’s methods of operation, but that material was only of contextual relevance to the review.
  5. In my view, the certificate issued was valid as the Tribunal found, and even if I were wrong in that finding, there was no procedural unfairness in the Tribunal not disclosing to Mr Singh the information covered by the certificate because of the lack of any substantial relevance to the review being conducted by the Tribunal.
  6. I otherwise agree with the Minister’s submissions in relation to the certificate.
  7. The Tribunal expressly did not rely upon any information covered by the s.375A certificate.[34] There was no breach of s.375A and no jurisdictional error on the part of the Tribunal.
  8. As to the allegation that the s.375A certificate was invalid, the certificate specified reasons to justify the non-disclosure of the material identified in it.[35] Among the reasons put forward were that some material related to a “third party” or “a third party/parties” and other material related to the “DIBP investigative processes”.[36]
  9. There is, in my view, no substance to the second and third grounds advanced by Mr Singh. I agree with the Minister’s submissions in relation to those grounds.

Ground 2 – denial of procedural fairness (Facebook and other documents)

  1. The second ground asserts a denial of procedural fairness to the extent that the Tribunal failed to put to Mr Singh particulars of Facebook and other documents that would affect the outcome of the review.
  2. It is plain that what actuated the Tribunal’s decision in this case was the near complete absence of evidence from Mr Singh or his wife to support a finding that the relationship was a genuine and continuing spousal relationship. In addition, and consistently with its obligations under s.359A and s.359AA of the Migration Act, the Tribunal put to Mr Singh particulars of information from Ms Nolan’s Facebook page (postings) to the effect that Ms Nolan was in a relationship with another male person and therefore not in a genuine (exclusive) spousal relationship with Mr Singh.[37]
  3. Mr Singh indicated to the Tribunal that he wished to respond immediately. Mr Singh’s response was that he knew nothing about the issue and that he could not prevent Ms Nolan from being friends with her ex-boyfriend or her friends teasing or congratulating her on an old relationship with another person. Mr Singh also said that Ms Nolan became despondent at the outcome before the delegate.[38]
  4. The Tribunal referred to the Facebook posts and to the significance of the information contained in the Facebook posts (that Ms Nolan was in a relationship with another male) when it assessed the social aspects of the parties’ relationship,[39] and the nature of the parties’ commitment to each other.[40]
  5. In addressing the first issue, the Tribunal found that the parties lived apart and in separate states and had done since 2015 and that aside from some photographs of the parties’ wedding and of them at a restaurant together, there was no other material before the Tribunal to support the extent to which the parties planned and undertook social activities together. This absence of evidence, together with the Facebook information which suggested that Ms Nolan was in a relationship with another male person, caused the Tribunal to find that the social aspects of their relationship were not indicative of a spousal relationship.[41]
  6. In addressing the second issue, the Tribunal found that Ms Nolan had not attended a hearing before either the MRT or the Tribunal to support Mr Singh and that the parties had lived apart since 2015. The Tribunal found that it had been provided no evidence to show the degree of companionship and emotional support the parties provided each other. Again, this absence of evidence, together with the information from the Facebook posts which suggested that Ms Nolan’s relationship with Mr Singh was non-exclusive, caused the Tribunal to find that the parties did not draw companionship and emotional support from one another.[42]
  7. It is unclear what “other document” is referred to by Mr Singh. If Mr Singh means to refer to the s.375A certificate, it is plain that the Tribunal expressly did not rely on this material.
  8. This ground is without merit.

Ground 3 – Misconstruction of regulation 1.15A and failure to consider

  1. In the third ground, Mr Singh asserts that the Tribunal misconstrued regulation 1.15A and failed to consider relevant considerations and took into account irrelevant considerations.
  2. Mr Singh provides no particulars to this ground.
  3. It is plain that the Tribunal addressed each of the considerations specified in regulation 1.15A(3), as required by sub-regulation (2).[43] The Tribunal made relevant findings and considered Mr Singh’s submissions in relation to each matter.
  4. As to the allegation that the Tribunal took into account irrelevant considerations, Mr Singh does not identify what the Tribunal is alleged to have taken into account which it was not permitted to take into account.
  5. It is plain that the Tribunal considered the material before it, together with Mr Singh’s submissions, and made findings which were open to the Tribunal to make.

Conclusion

  1. As Mr Singh has failed to demonstrate an arguable case of jurisdictional error by the Tribunal, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
  2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. Mr Singh did not wish to be heard on costs.
  3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 27 July 2018

[1] Court Book (CB) 1-24.
[2] CB 107-113.
[3] CB 146-152.
[4] CB 154.
[5] CB 154.
[6] CB 179-186.
[7] Mr Singh was required to file his application for review within 35 days, which expired on 22 February 2018 (s.477(1) of the Migration Act).
[8] CB 177.
[9] Clause 820.21 and 820.211(2)(a) of the Regulations.
[10] Clauses 820.22 and 820.221(1) of the Regulations.
[11] Section 5F of the Migration Act was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (Act No 129 of 2017), which commenced on 8 December 2017.
[12] CB 180 ([5]).
[13] CB 181 ([11]).
[14] CB 180-181 ([8], [10]).
[15] Regulation 1.15A(1), (2) of the Regulations.
[16] CB 180-181 ([9], [12], [18]ff).
[17] CB 182 ([18]).
[18] CB 182 ([19]).
[19] CB 182 ([20]).
[20] CB 182 ([22]).
[21] CB 183 ([24]).
[22] CB 183 ([26]).
[23] CB 183 ([28]).
[24] CB 183 ([29]).
[25] CB 183 ([30]).
[26] CB 184 ([32]).
[27] CB 184 ([31]).
[28] CB 184 ([34]-[36]).
[29] CB 184 ([37]-[38]).
[30] CB 185 ([40]).
[31] CB 185 ([41]).
[32] CB 185 ([42]).
[33] CB 181
[34] CB 181 ([11]). Cf AVO15 v Minister for Immigration [2017] FCA 566 at [87]- [91], per Barker J.
[35] Section 375A of the Migration Act. Cf Minister for Immigration v Singh [2016] FCAFC 183 at [12], per the Court (Kenny, Perram and Mortimer JJ).
[36] CB 153.
[37] CB 181 ([14]-[15]).
[38] CB 181 ([15]).
[39] CB 183 ([30]).
[40] CB 184 ([34]-[35]).
[41] CB 183-184 ([30]-[31]).
[42] CB 184 ([34]-[36]).
[43] He v Minister for Immigration [2017] FCAFC 206 at [76] and [79], per Siopis, Kerr and Rangiah JJ.

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