FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 1529

Appeal from:

Singh v Minister for Immigration and Border Protection [2016] AATA 628

File number:

NSD 1581 of 2016

Judge:

PERRY J

Date of judgment:

19 December 2016

Catchwords:

MIGRATION – appeal from a decision of the Administrative Appeals Tribunal (AAT) – where AAT affirmed decision of a delegate of first respondent to refuse the applicant a visa under s 501(1) of the Migration Act 1958 (Cth) – whether AAT failed to take into account previous Migration Review Tribunal decision – whether applicant was denied procedural fairness – whether AAT erred in its consideration of the applicant’s sentence of imprisonment – whether AAT failed to have regard to applicant’s ability to live in Fiji – appeal dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth) s 501(1)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Date of hearing:

29 November 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

57

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Mr A Keevers, solicitor for Sparke Helmore

Counsel for the Second Respondent:

The second respondent filed a submitting appearance save as to costs

ORDERS

NSD 1581 of 2016

BETWEEN:

BIRENDRA SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

19 December 2016

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

[1]

2.    JURISDICTION

[3]

3.    STATUTORY FRAMEWORK

[5]

4.    BACKGROUND

[15]

4.1    The visa application and decision of the delegate

[15]

4.2    The AAT’s decision

[21]

5.    EVIDENCE

[28]

6.    CONSIDERATION

[35]

6.1    The Notice of Appeal

[35]

6.2    Limits as to the Court’s jurisdiction on the application for judicial review

[39]

6.3    Alleged failure to take into account the previous Migration Review Tribunal decision

[41]

6.4    Alleged breach of procedural fairness

[48]

6.5    Alleged error in relying upon the applicant’s sentence of imprisonment for 12 months as opposed to the term served in prison

[51]

6.6    Alleged failure to have regard to the applicant’s ability to live in Fiji

[54]

6.7    Alleged failure to consider the impact of refusing the visa on the applicant’s marriage

[56]

7.    CONCLUSION

[57]

1.    INTRODUCTION

1    This is an appeal from a decision of the Administrative Appeals Tribunal (the AAT) affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refusing to grant the applicant, Mr Birendra Singh, a Partner (Temporary) (Class UK) visa (the visa). Mr Singh’s visa was refused in the exercise of discretion pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act) on the delegate finding that she or he was not satisfied that Mr Singh passed the character test.

2    For the reasons set out below, the appeal must be dismissed with costs.

2.    JURISDICTION

3    This appeal is stated to be instituted under s 44 of Part IVA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 44 provides that a party to a proceeding before the AAT may appeal to this Court on a question of law from any decision of the AAT in that proceeding. I note that the decision of the AAT was given in its general division on 23 August 2016. As such, the decision is not anAAT migration decision” (as defined in 474A of the Act), and therefore is not excluded from Part IVA of the AAT Act providing for appeals to the Federal Court from decisions of the AAT.

4    While the Notice of Appeal purports to identify a question of law, the grounds of appeal are not limited to questions of law. However, the Minister very properly accepted that Mr Singh was not limited to appealing on a question of law under s 44 of the AAT Act but that this Court could entertain the grounds on the basis that they were grounds of judicial review, that is, that they potentially raised jurisdictional errors that, if established, would invalidate the decision of the AAT.

3.    STATUTORY FRAMEWORK

5    The object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (s 4(1)). This object is advanced under the Act by making provision for the grant of visas permitting non-citizens to enter or remain in Australia. As s 4(2) makes express, the Parliament intends that the Act be the sole source of the right of non-citizens to enter or remain in Australia.

6    A non-citizen in the migration zone is a lawful non-citizen if she or he holds a visa that is in effect, in the absence of which the non-citizen is an unlawful non-citizen (ss 13(1) and 14(1) of the Act). Subject to the Act, the Minister may grant a non-citizen a visa under ss 29(1). A non-citizen who wants a visa must apply for a visa of a particular class (s 45). The Minister must grant a visa if satisfied that the criteria are met including, importantly, that the grant of the visa is not prevented by s 501 of the Act and, if not so satisfied, must refuse to grant the visa (s 65(1)(a) and (b) of the Act).

7    Section 501(1) of the Act in turn provides that:

Decision of Minister or delegate—natural justice applies

(1)      The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:          Character test is defined by subsection (6).

8    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record.

9    Section 501(7) relevantly defines substantial criminal record relevantly as follows:

For the purposes of the character test, a person has a substantial criminal record if:

(c)      the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)      the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

10    Section 501(7A) further provides:

For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:    A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

11    Under s 499(1) of the Act, the Minister may give directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. The delegate and the AAT must comply with the direction: s 499(2A). The relevant direction in the context of a visa cancellation on character grounds is Direction No.65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65).

12    Clause 6.3 of Direction No.65 sets out the principles relevant to the refusal or cancellation of a visa on character grounds, including, as the AAT stated at [15] of its reasons:

(2)     The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)     A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)     In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(6)     Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)     The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

13    Part B of Direction No.65 also sets out a number of considerations which a decision maker must take into account when determining whether to exercise the discretion to refuse the grant of a visa pursuant to s 501(1) of the Act. These considerations are separated into primary considerations and other considerations. The primary considerations are:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    the best interests of any minor children in Australia; and

(3)    the expectations of the Australian community.

14    Other considerations that must be taken into account for visa applicants include (but are not limited to):

(1)    international non-refoulement obligations;

(2)    the impact on family members;

(3)    the impact on victims;

(4)    the impact on Australian business interests.

4.    BACKGROUND

4.1    The visa application and decision of the delegate

15    Mr Singh is a citizen of Fiji. He arrived in Australia in 1988 as a holder of a V12 Visitor visa accompanied by his then wife and his daughter. He has remained onshore since that time in Australia on various bridging visas.

16    On 25 June 2010, Mr Singh lodged an application for the visa, as well as a Partner (Residence) (Class BS) visa which was sponsored by his (now) wife, Mrs Singh.

17    On 18 November 2015, the Department of Immigration and Border Protection (the Department) issued a Notice of Intention to Consider Refusal (the Notice) in relation to Mr Singh’s application for the visa advising that the Minister or his delegate intended to consider whether his application should be refused under s 501(1) of the Act. The Notice stated that the Department held information which indicated Mr Singh had a substantial criminal record within the meaning of that term as defined in s 501(7) of the Act and that as a result he did not pass the character test by virtue of s 501(6)(a) of the Act: see further at [19] below.

18    On 31 May 2016, a delegate of the Minister refused to grant Mr Singh the visa under s 501(1) of the Act. The delegate noted that Mr Singh had a criminal history spanning from 1993 until 2010 in Australia, with his most recent serious convictions including:

04/02/2010

Use [of] False Instrument With Intent (14 charges)

On each charge. Imprisonment for 12 months commencing 6 Jan 2010

04/02/2010

Goods In Personal Custody Suspected [of] Being Stolen

Imprisonment for 6 months commencing 6 Jan 2010

21/02/2008

Use [of] False Instrument With Intent (3 charges)

Have False Instrument With Intent To Use (10 charges)

Participate in Criminal Group

Assist Criminal Activity

Goods In Personal Custody Suspected [of] Being Stolen

On each charge. Imprisonment for 9 months commencing 23/10/07

19    As a result of the convictions and sentences set out above, the delegate considered that Mr Singh had a substantial criminal record and did not pass the character test by virtue of s 501(6)(a) with reference to subsection 501(7)(c) of the Act.

20    Having found that Mr Singh did not pass the character test, the delegate proceeded to consider whether to exercise the discretion to refuse to grant Mr Singh a visa. The delegate acknowledged that Direction No. 65 was binding. The delegate concluded that Mr Singh represented a risk of harm to the Australian community which was unacceptable and that the delegate could not be satisfied that the risk of Mr Singh re-offending was negligible. The delegate further found there were no sufficient countervailing considerations in the case to warrant the Australian community accepting any level of risk. As a consequence, the delegate decided to exercise the discretion under s 501(1) of the Act to refuse Mr Singh’s application for the visa.

4.2    The AAT’s decision

21    Pursuant to s 500(1) of the Act, Mr Singh applied to the AAT on 9 June 2016 for a review of the delegate’s decision. On 4 August 2016, Mr Singh attended a hearing before the AAT in person and was represented by a migration agent.

22    The AAT noted at [12] of its reasons that, as Mr Singh had been imprisoned for a period of 12 months, he had a ‘substantial criminal record’ within the meaning of s 501(7) of the Act and therefore did not pass the character test as set out in s 501(6) of the Act.

23    As to the exercise of discretion, the AAT noted that it must have regard to Direction No. 65 and to the primary and other considerations contained in that direction. As Mr Singh did not have any children under the age of 18 years, it was only the first and third of the primary considerations that were relevant.

24    As to the protection of the Australian community, the AAT first considered the nature and seriousness of Mr Singh’s conduct to date, and then considered the risk to the community should he commit further offences or engage in other serious conduct. The AAT noted Mr Singh’s previous criminal history and that since being released from prison in January 2011, Mr Singh has not committed any further offences (at [21]). The AAT was satisfied that the nature of Mr Singh’s offences, as well as the seriousness of several of those offences, were matters of serious concern (at [25]). However, the AAT also found that the seriousness of Mr Singh’s offending was mitigated by his positive behaviour since 2011 (at [25]). The AAT acknowledged that Mr Singh’s rehabilitation over the previous five years was commendable and clearly related to his strong relationship with his wife and ceasing alcohol consumption” (at [30]). However, the AAT noted it “cannot guarantee that Mr Singh will never offend or engage in other serious conduct in the future” (at [30]).

25    As to the expectations of the Australian community, the AAT held (at [37]):

Notwithstanding his positive rehabilitation over the past five years, I am satisfied that the Australian community expectations would be that a person with a 17 year criminal history should not be permitted to remain in Australia. I am therefore satisfied this primary consideration counts against the applicant.

26    The AAT then proceeded to consider a number of other considerations. These included Mr Singh’s familial ties to Australia, the impact of his immigration status on his family, his family connections to Fiji, any substantial barriers that would prevent him resuming his life in Fiji, and any adverse impact that Mr Singh’s visa refusal would have on the delivery of any major projects or delivery of an important service to Australia. In particular, the AAT had regard to Mrs Singh’s evidence as to her dependence on her husband, and to the report of a counsellor which had outlined the negative mental health impacts Mr Singh’s immigration status was having on Mrs Singh (at [41]-[42]). However, while the AAT accepted that refusing Mr Singh’s visa would clearly impact on his wife and their life together, this was alleviated by Mr Singh and his wife having family residing in Fiji (at [44]). Ultimately, the AAT concluded that while these other considerations weighed in favour of Mr Singh, the weight given to these considerations was low and did not outweigh the primary considerations (at [47]).

27    In those circumstances, the AAT considered it was not appropriate to revoke the refusal of Mr Singh’s visa, and affirmed the decision under review.

5.    EVIDENCE

28    The applicant relied upon an affidavit of his wife, Mrs Singh, filed on 17 November 2016. That affidavit attaches an earlier decision of the Migration Review Tribunal (MRT) dated 9 July 2013 (the MRT decision), in which the MRT remitted the applicant’s application for a partner visa for reconsideration with the direction that Mr Singh met certain criteria for the grant of a partner visa. The affidavit was read subject to relevance, noting that much of what contained in the affidavit was in the form of submissions. In the result, I take paragraphs 1, 2 and 3 of Mrs Singh’s affidavit as read in support of Mr Singh’s appeal but not paragraphs 4 to 8 inclusive. The latter paragraphs are not relevant because they seek to re-agitate the merits of the AAT’s decision which is not a course open in this Court (see further below at [40]). However, I have had regard to those paragraphs as submissions.

29    Mrs Singh was cross-examined on her evidence that a copy of the MRT decision was sent to the AAT but apparently was not in the documents before the AAT (the G Documents). She said that she provided a copy of the earlier MRT decision to her migration agent to provide to the AAT, and that he duly did so. Mrs Singh said at one point of her evidence that she was advised via text message that her migration agent was going to post or email the documents and that she could come to the office and get the confirmation. She also said that the text message confirmed that the letters had in fact been sent. The migration agent provided Mrs Singh with the original letters when she went to his office. He told her verbally that he had sent them by email. While she otherwise received no confirmation and was never sent a bill for the cost of either emailing or posting these documents, she said that she was sure that he actually sent the documents because he told her that he did so and she trusted him.

30    Two letters were produced in the course of the hearing and were tendered in evidence. The first letter is dated 20 July 2016 and is written by Anil Keshary of Lapen Migration Services & Consultancy and is addressed to Catriona Hamlin, Case Service Officer at the AAT (Exhibit A1). The letter contains submissions on behalf of the applicant as to the compassionate circumstances which the appellant asked the AAT to take into account, including the interests of his wife, expressing remorse for his offences which he accepted are serious and promising not to repeat his offending. The second letter (Exhibit A2) is dated 21 July 2016 also from Mr Keshary and is addressed to the Case Service Officer in the General Division of the AAT. The letter reads:

I am pleased to submit a decision dated 10 July 2013 which was made in favour of Birendra Singh. I hope that the Tribunal will take into consideration the contents of the decision as the applicant gave evidence under oath with his wife…

The evidence is so important because it reflects the applicant’s honest credible evidence and also the compelling circumstances. The decision of the Migration Review Tribunal by Senior Member Louise Nicholls is relevant and a copy of which was not before the current Tribunal.

I hope that the Honourable Member will consider the attached decision.

31    I accept Mrs Singh as a truthful and honest witness and accept her account of what happened insofar as she had actual knowledge of those events. While her evidence was at times confused, I attribute that to nervousness in the witness box and do not draw any adverse inference in that regard. Her evidence was largely consistent and she was able to produce the letters to which she referred in her evidence when called upon to do so.

32    The Minister submitted that Mrs Singh’s evidence show that instructions were given to the applicant’s migration agent to provide the MRT decision to the AAT. However, the Minister submitted that there is no direct or first-hand evidence to suggest this actually occurred. Nonetheless, the Minister accepted that the Court could draw an inference that the submission was sent, but submitted that there is nothing to suggest that the letters were ever received by the AAT or provided to the Minister or his solicitors in the AAT; nor in the Minister’s submission was there anything to suggest that any submission was made about this document at the hearing.

33    I consider that the evidence given by Mrs Singh and the production of the signed letters provide a sufficient basis on which to infer that the migration agent in fact sent the letter dated 21 July 2016 to the AAT and attached the earlier MRT decision, as well as the earlier letter. Furthermore, as Mrs Singh was given the original letters by the migration agent, I infer that these documents were sent by email to the AAT.

34    However, for the reasons explained below, it is unnecessary for me to determine whether these documents were actually received by the AAT and the earlier MRT decision was therefore before the AAT in this case.

6.    CONSIDERATION

6.1    The Notice of Appeal

35    The notice of appeal raises one question of law, namely, that the AAToverlooked the compelling circumstances and deprived [Mr Singh] of fairness and natural justice. Mr Singh develops this ground in his notice of appeal under the heading “Findings of fact that the Court is asked to make”, namely:

The Court is asked to consider that a serious error of fact which amounts to [a] serious error of law, in particular, to consider that compelling and compassionate circumstances were previously considered by Migration Review Tribunal and now the decision of the Tribunal denies the applicant and his wife’s circumstances, especially that compelling and compassionate circumstances continue to exist since the last Tribunal decision which the Tribunal remitted the file to the Department for further consideration.

(errors in original.)

36    As noted by the Minister, Mr Singh appears to be making two contentions: first, that the AAT failed to consider a relevant consideration and secondly that the AAT deprived Mr Singh procedural fairness. As a matter of principle, errors of that nature may constitute jurisdictional errors on the basis of which the Court may grant relief.

37    Mr Singh further raises a further four grounds in his notice of appeal (some of which overlap with the contentions earlier mentioned):

1.    The Tribunal had National Police Certificate in which all the offences were listed and in 2010 the applicant was not imprisoned for 12 months. He was out in August 2010 and then got married on 27 November 2010 and since he was never in jail and since had had no further convictions therefore the Tribunal failed to consider his remorse and conduct since the last conviction.

2.    The Tribunal also failed to consider the compelling and compassionate circumstances and failed to ask itself the question how will the applicant be able to live in Fiji after being away since August 1988.

3.    The Tribunal also failed to take into account the applicant’s previous Migration Review Tribunal hearing in which the Presiding Member at the time accepted significant compelling reasons and the current Tribunal ignored the substantial barrier that would prevent him resuming a normal life in Fiji, especially the significant and profound emotional hardship as well as financial hardship he will endure as a result of separation from his loving wife who will not be able to lead a normal life in Australia without him.

4.    The applicant and his wife will suffer and will not be able to enjoy marital commitment if he is deported.

(errors in original.)

38    Mr Singh, who appeared in person at the hearing, handed up brief written submissions at the hearing of the application and made oral submissions.

6.2    Limits as to the Court’s jurisdiction on the application for judicial review

39    In his submissions, Mr Singh takes issue (among other things) with factual findings made by the AAT including as to the risk that he might reoffend in the future and the weight which the Tribunal gave to that consideration as against other considerations in his favour. However, this Court does not have jurisdiction to reconsider these issues and undertake its own assessment of the merits of the Tribunal’s decision to refuse to grant the visa to Mr Singh.

40    Bearing in mind the manner in which the matter proceeded (referred to at [3] and [4] above), the Court’s jurisdiction is limited to considering only the legality of the Tribunal’s decision to refuse to grant Mr Singh a visa, that is, to a consideration of such questions as whether the Tribunal addressed the matters which it was required to consider under s 499 and Direction No.65, whether it took into account relevant issues raised by Mr Singh, and whether it acted according to the requirements of procedural fairness: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). As such, in contrast to the AAT which must determine whether the delegate’s decision is the correct and preferable decision (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286), it is not open to the Court to consider whether or not it agrees with the AAT’s decision and would have reached the same decision (see e.g. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). In other words, the fact that I would not necessarily have reached the same decision as the AAT is irrelevant.

6.3    Alleged failure to take into account the previous Migration Review Tribunal decision

41    Mr Singh’s notice of appeal refers to “compelling and compassionate circumstances” that had previously been considered by the MRT. As noted earlier, the earlier MRT decision was attached to the affidavit of Mrs Singh filed in these proceedings and is dated 9 July 2013.

42    The MRT decision concerned a review of a decision of the Minister’s delegate to refuse to grant Mr Singh a visa on the basis that Mr Singh did not satisfy cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because he had not provided sufficient information to satisfy the delegate that he had been in a de facto relationship with the sponsor as defined in Act. The earlier MRT remitted the application for reconsideration on the ground that it was satisfied that Mr Singh, at the time of application, was the de facto spouse of the sponsor within the meaning of the Act and Regulations, and there were compelling reasons for not applying the “Schedule 3 criteria” for the purposes of cl 830.211(2)(d) of Schedule 2.

43    As to the latter, the Schedule 3 criteria required the applicant to lodge a visa within 28 days of the relevant day, which had not occurred in the applicant’s case. As a consequence, the AAT was required to consider whether there were compelling reasons for not applying those criteria. In this regard, the AAT found at [49]-[51] that:

The Tribunal accepts that the couple were in a genuine de facto relationship from July 2007, roughly 3 years before the application for the partner visa. The relationship is therefore of a relatively long standing duration.

Further the applicant and sponsor have given evidence supported by documents and which the Tribunal accepts that the sponsor has been working 7 days a week in lengthy shift work to maintain mortgage payments on her property as well as supporting the couple in their living expenses. The Tribunal accepts that she is the main breadwinner for the couple and if the applicant was to return to Fiji that she would feel compelled to leave Australia with the applicant, leading to loss of her employment and income in Australia which would have a serious adverse effect on whether she would be able to maintain the mortgage payments on her apartment and cause problems for her if the couple were to return to Australia.

The Tribunal is satisfied that there are compelling reasons to waive the Schedule 3 criteria…

44    The Minister’s primary submission is that the Court should infer that this material was not before the AAT, i.e. that it was not received, and thus that it “cannot be an error of law for the Tribunal not to consider a matter that was never put to it”. Further and in any event, the Minister submits that the AAT in conducting the present review was plainly not bound by findings in any previous decisions of the Tribunal (then the MRT).

45    While I am prepared to infer that the letter and accompanying MRT decision were sent to the AAT by email, there is no evidence that they were received by the AAT which made the decision under consideration in this appeal. As earlier mentioned, that material does not appear in the G Documents which are reproduced in the Appeal Book and no reference is made to the letter or the MRT decision in the AAT’s decision. Nor is there any reference to the other letter (Exhibit A1).

46    Even accepting, however, that the AAT did receive the material, the failure to refer to the material in the MRT decision does not mean that it was not taken into account. Significantly in this regard it is apparent from its reasons that the AAT did consider the substance of the grounds accepted by the MRT as “compelling circumstances”, together with other compassionate and mitigating circumstances on which Mr Singh gave evidence before the AAT.

47    That being so, the question becomes whether the AAT erred in failing to consider the fact that the MRT had accepted those circumstances as “compelling in its earlier decision. In my view, even if it failed to do so, that could not constitute a jurisdictional error. First, as the Minister submits, the AAT is not bound by factual findings made by earlier Tribunals. Secondly and in any event, the AAT accepted Mr Singh’s evidence as to the existence of those compassionate circumstances and the other circumstances on which he relied in support of his application for review of the delegate’s decision. Thirdly, in reaching the decision under review in these proceedings, the AAT was required by s 499 to weigh those compassionate and mitigating circumstances against other considerations, including protection of the Australian community from criminal conduct, in the manner directed by Direction No. 65. By contrast, the issues for the MRT in the earlier decision were (relevantly) simply whether there were compelling reasons for waiving the criteria in Schedule 3 that the visa application be made within 28 days of (in effect) the visa applicant becoming illegal (i.e. ceasing to hold a visa). The question before the MRT, in short, was a different and narrower question from the question which the AAT was required to decide in its decision under review here.

6.4    Alleged breach of procedural fairness

48    Mr Singh also asserts that he was deprived of “fairness and justice” by the AAT. However, no specific denial of procedural fairness is identified.

49    I do not consider that there is any evidence that Mr Singh was denied procedural fairness. As earlier mentioned, Mr Singh was given the Notice advising that the Minister or his delegate intended to consider whether his application should be refused under s 501(1). The Notice extended Mr Singh an opportunity with 28 days to comment on or provide information that he passed the character test or in relation to the exercise of discretion, and stated that he could request an extension of time. The Notice also explained that he should address each paragraph in Part B of Direction 65 which was relevant to his circumstances. A copy of Direction No.65 was attached to the Notice.

50    Mr Singh responded to the Notice in writing on 11 January 2016. The delegate’s reasons for decision given on 31 May 2016 considered the matters in Direction No.65. The decision put Mr Singh on notice of the likely issues before the AAT: see above at [18]-[20]. Attached to the delegate’s decision were copies of every document relevant to that decision, including the National Police Certificate and the sentencing remarks for the most serious of the offences for which he was convicted and sentenced to terms of imprisonment of twelve months. Further, as the Minister submits, Mr Singh attended the hearing before the AAT on 4 August 2016 and was represented by his registered migration agent. Prior to the AAT hearing, Mr Singh provided a report from a counsellor addressing the circumstances of his offending and his rehabilitation which was considered by the AAT (see AAT reasons at [29]). In these circumstances, no denial of procedural fairness has been established.

6.5    Alleged error in relying upon the applicant’s sentence of imprisonment for 12 months as opposed to the term served in prison

51    Mr Singh’s submission relating to his sentence of imprisonment is two-fold. First, he submits that he was not in fact in prison for 12 months, relying on evidence that he was not in prison in August 2010 and was married on 27 November 2010. In essence, Mr Singh contends that the AAT incorrectly found that he did not pass the character test as he was not physically imprisoned for a period of 12 months. Secondly, Mr Singh submits that the AAT failed to consider his remorse and conduct since the time of his last conviction in 2010.

52    As noted earlier, s 501(7) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The Act does not draw a distinction between the sentence, on the one hand, and the time in fact served in prison which may be less where the person is released on parole, on the other hand. Here, Mr Singh’s national police certificate part of which is summarised at [18] above records that on 4 February 2010, Mr Singh was sentenced to a term of imprisonment for 12 months on 14 charges of using a false instrument with intent, commencing 6 January 2010. Having been so sentenced, Mr Singh has a ‘substantial criminal record’ within the meaning of s 501(7) of the Act.

53    As to the second contention, as the Minister submits, the AAT considered that Mr Singh’s conduct following his release from prison was a mitigating factor, and expressly considered the counsellor’s report which stated that the applicant was “remorseful and is dedicated to a new lifestyle and way of living with his wife’s support and working in a new business” (at [29]). It follows that the AAT did not fail to consider these matters in reaching its decision.

6.6    Alleged failure to have regard to the applicant’s ability to live in Fiji

54    Mr Singh further contends that the AAT failed to ask itself how Mr Singh would be able to live in Fiji having not resided there since 1988. The short point, however, is the AAT did have regard to these considerations. Specifically at [43]-[45] of its reasons, it found that:

Mr Singh told the Tribunal that his parents are deceased but he has siblings in Fiji. While he has not returned to Fiji since 1988, he speaks occasionally with his siblings by phone. Ms Singh also has siblings in Fiji who she speaks with by phone and she visits every year for one-two weeks. She has only recently returned from a two week trip to Fiji to visit her family.

The refusal to grant Mr Singh a visa will clearly impact on his wife and their life together in Australia. However, this impact is alleviated by both Mr and Ms Singh having family who reside in Fiji. I note that Ms Singh, in particular, has maintained relationships with her extended family by returning to Fiji every year.

Given Mr Singh’s experience in the construction industry, there is no reason to doubt that he would be in a position to live and work in Fiji. Mr Singh was diagnosed with diabetes in 2011 but told the Tribunal that he manages his diabetes through diet and exercise. I therefore find that there are no substantial barriers that would prevent him resuming his life in Fiji.

55    As such, ultimately the complaint is not that the AAT failed to have regard to these matters, but rather as to the weight which the AAT afforded to them, as against the seriousness of Mr Singh’s prior offending and the risk of harm to the Australian community which the AAT was required also to take into account. That is not a matter which this Court can review: see above at [40].

6.7    Alleged failure to consider the impact of refusing the visa on the applicant’s marriage

56    Finally, Mr Singh contends that he and his wife will suffer and not be able to enjoy a marital commitment if he is deported. However, as the Minister submits, the Tribunal did consider the impact on Mr Singh’s marriage and accepted that the visa refusal would clearly impact on Mr Singh’s wife and their life together (at [44]). As such, again the submission seeks to engage the Court in a consideration of the merits of the AAT’s findings which this Court has no power to do: see above at [40].

7.    CONCLUSION

57    For these reasons, the appeal must be dismissed with costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Associate:

Dated:    19 December 2016