FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2018] FCA 1909

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

GLEESON J:

1    This is an application for an extension of time and leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”), dismissing an application for judicial review of a decision of the second respondent (“Tribunal”): Singh v Minister for Immigration [2018] FCCA 1306. The Tribunal had, by decision dated 21 November 2017, affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant Partner (Temporary) (Class UK) visa.

2    In order to obtain the visa, the applicant was required to demonstrate that he was in a spousal relationship with his sponsor.

3    As he was not the holder of a substantive visa at the time of the visa application, cl 810.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth) (“Regulations”) also required the applicant to satisfy, relevantly, certain criteria in Sch 3 to the Regulations unless the Minister was satisfied that there were compelling reasons for not applying those criteria.

4    Mr Singh’s application to the FCCA was dismissed because the FCCA judge was not satisfied that Mr Singh had raised an arguable case for the relief he claimed.

5    The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (“FCCA Rules”) and was therefore interlocutory in nature: see r 44.12(2) of the FCCA Rules. Accordingly, leave to appeal from the decision is required: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

6    Pursuant to r 35.13 of the Federal Court Rules 2011, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made. The judgment and orders of the FCCA were made on 22 May 2018, and consequently the application for leave to appeal was required to be filed by 3 June 2018. The application was filed on 15 June 2018 (about 10 days out of time). Mr Singh therefore requires an extension of time to bring the application for leave to appeal.

7    The applicant’s draft notice of appeal sets out the following proposed grounds:

(1)    The FCCA judge “failed to hold” that the Tribunal committed a jurisdictional error by failing to take into account matters occurring after the date of application when determining whether the Sch 3 criteria should apply.

(2)    “The Tribunal [misconstrued] and mistook the facts related to the Sponsor’s medical and mental condition and it concluded that the appellant is not a credible witness because of the sponsor did not attend the hearing. The appellant attended the hearing and he presented oral evidence as a [truthful] witness. In assessing the genuine spousal relationship the Tribunal’s assessment is biased.”

(3)    The Tribunal made a jurisdictional error when it “did not apply a flexible attitude ([Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121]) in using his [discretionary] power”.

(4)    The Tribunal made a jurisdictional error when it “accounted many irrelevant considerations and discredited oral and written evidence of the appellant in support of the compelling circumstances to waive the Schedule 3 Conditions”.

8    At the outset, I note (as set out below) that the Tribunal did not address the Sch 3 criteria because it was not satisfied that the appellant and his sponsor were in a spousal relationship.

9    Accordingly, proposed grounds (3) and (4) are hopeless because they are based on the incorrect premise that the Tribunal did address the Sch 3 criteria.

10    It also follows that the FCCA judge could not have made a jurisdictional error of the kind identified in proposed ground (1), because that ground is also based on the incorrect premise that the Tribunal addressed the Sch 3 criteria. Proposed ground (1) is therefore also hopeless.

11    Accordingly, the only ground in respect of which there is any prospect of an appeal is proposed ground (2).

Background facts

12    At [2] of his Honour’s reasons, the FCCA judge set out the following relevant facts:

The applicant is a citizen of India and arrived in Australia on 17 September 2008 as the holder of a Student visa. On 17 June 2010, the applicant again entered Australia as the holder of a Student visa. The applicant then applied for a further Student visa which was refused, and the applicant then sought to challenge that decision in the Tribunal and then before the Federal Court of Australia. The applicant then remained in Australia unlawfully for 156 days. The applicant’s last substantive visa expired on 15 December 2010. The applicant lodged the application for the Partner visa the subject of the current Tribunal’s decision on 19 December 2013, as a result of a relationship allegedly commencing on 31 December 2012 and the parties being married on 7 July 2013.

13    On 2 August 2016, the Minister’s delegate refused to grant the partner visa.

14    The applicant applied to the Tribunal for a review of the delegate’s decision.

Tribunal’s decision

15    On 21 November 2017, the Tribunal affirmed the decision under review.

16    At paras 6 to 8 of its decision record, the Tribunal set out background facts concerning the applicant.

17    At paras 9 to 14, the Tribunal recorded the circumstances that led to the Tribunal’s hearing, including the various invitations to the applicant to attend the hearing, adjournments of the hearing and communications between the applicant and the Tribunal.

18    At para 15 the Tribunal found that the sponsor was an eligible citizen within the meaning of the relevant law at the relevant times.

19    At para 16, the Tribunal found that the applicant and the sponsor were validly married.

20    At paras 17 to 29, the Tribunal considered whether the applicant and the sponsor were in a spousal relationship. Relevantly, the Tribunal’s reasons stated:

19.    On these aspects, the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows.

20.    The parties previously stated that they share day to day expenses. The applicant provided bank statements for the parties’ joint account. The transactions on the statements are limited. They do not provide an insight into how the parties share their financial matters. Copies of the applicant’s bank statements in 2013 show a debt of over $12,000. Also in the applicant’s name dated June 2013, is an application for exemption for paying court fees. Other information includes copies of car insurance in the parties names dated 26 May 2016; a credit advice dated October 2015, to the sponsor about repayment opportunity for a debt of $1621.83 and unnamed ad hoc receipts. At the Tribunal hearing of 15 November 2017 the applicant stated that he borrowed money from his family which he used for the parties household. In addition he said that he is employed and he provides money to the sponsor for the parties’ expenses. The sponsor is not employed and the parties, other than their joint bank account do not have any shared financial assets or liabilities.

21.    In their previous statements the parties claimed that since their marriage they lived at a residential address of The Crescent, Berala New South Wales. In support of this they have provided copies of correspondence address to them individually at this address. On 6 August 2013, in his application for exemption of court fees the applicant stated that he was paying fortnightly $80 in rent, $10 in utilities, $127 in loan repayments, $21 in insurance premiums, $50 for food, $15 for clothing $25, for travel and motor vehicle and $70 telephone and that he had a total debt of over $17,000. At the Tribunal hearing of 15 November 2017 the applicant stated that the parties lived at the Berala address. He stated that the property is shared with another person who has the lease and that person is currently overseas. He told the Tribunal that the parties share the cooking and cleaning. He also stated that perhaps in two weeks he would sign a lease in the parties’ joint names.

22.    The parties previously stated that they present socially within their social circle. Previous third party statements attest to the parties’ relationship being genuine. Some authors state that they attended the parties wedding; wedding anniversary and cultural festivals and have known the applicant for many years. Photographic evidence depicts the parties at what appears to be their wedding ceremony together while other photographs in an album titled “Happy Wedding Anniversary” shows the parties together and with others. At the Tribunal hearing of 15 November 2017 the applicant stated that at weekends the parties go to the temple and visited friends.

23.    In July 2013, the parties married. In June 2016, the applicant stated that the parties lived together and their relationship was genuine and continuing. At the same time the parties’ provided statements that they live together in a happy relationship.

24.    At the Tribunal hearing of 15 November 2017 the applicant told the Tribunal that the sponsor told him on the night before the hearing she would attend the hearing but on the morning of the hearing changed her mind. He said she has been crying and is psychologically concerned about the applicant’s future. He stated that she is suffering from tension and he obtained a medical certificate for her last week but left it at home. He said that the parties live together and when the visa is granted they plan to have a baby and want to travel to India to visit his family. The Tribunal told the applicant that at the adjourned hearing it had explained to the applicant how vital it is that the sponsor provides her evidence in person to the Tribunal. It said that this is because there is no independent evidence what so ever before the Tribunal since June 2016 about the parties’ relationship.

25.    The applicant told the Tribunal he could not continue with his migration agent because of finances. He instructed that the Tribunal deal with him directly. The Tribunal told the applicant to ensure that he advise the Tribunal formally about this change. The applicant confirmed that the Tribunal had all the relevant information about the parties’ spousal relationship regarding the financial aspects of their relationship, the nature of any household, and social aspects of their relationship and the nature of their commitment to each other.

Findings

26.    The applicant provided some evidence to the Department at the time of application in December 2013 and during the visa process with the Department until June 2016. At the Tribunal hearing the applicant gave oral evidence that the parties continue in a spousal relationship. Even if the Tribunal accepted that the sponsor was unwell and couldn’t attend the hearing, it does not consider it reasonable that the applicant is unable to provide any substantive evidence about the parties’ spousal relationship. Even after the Tribunal provided the applicant and the sponsor numerous opportunities to provide evidence about their relationship. The parties have not provided any documentary or corroborative evidence since June 2016 onwards, concerning the financial aspects of their relationship, the nature of any household, any social aspects of their relationship, or the nature of their commitment to each other. Because of the lack of documentary or corroborative evidence about the parties’ spousal relationship since June 2016, the Tribunal is not satisfied that the applicant is credible and it places limited weight on his oral evidence.

27.    The Tribunal, due to the lack of evidence to the contrary, is unable to be satisfied that at the time of decision the parties are in a spousal relationship because the parties have not provided to the Tribunal any evidence concerning their spousal relationship regarding the financial aspects of their relationship, the nature of any household, any social aspects of their relationship, or the nature of their commitment to each other.

28.    The Tribunal, on the evidence is not satisfied that at the time of this decision, the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together, or not live separately and apart on a permanent basis.

[Typographical errors in original]

21    At para 30, the Tribunal concluded that it was not satisfied that the parties were in a spousal relationship at the time of its decision.

22    At para 31 of the decision record, the Tribunal stated that, as the applicant had not satisfied it that he and the sponsor were in a spousal relationship, it did not go on to consider the Sch 3 criteria.

FCCA proceeding

23    On 22 May 2018, the FCCA judge conducted a “show cause hearing” under r 44.12 of the FCCA Rules to determine whether his Honour was satisfied that the applicant had raised an arguable case for the relief he claimed. The following elements of his Honour’s reasons are significant:’

(1)    The applicant made a submission to the FCCA judge that his wife was sick on the day of the Tribunal hearing and said that he had medical material to support that fact and that his wife had been an alcoholic, which was the reason for her non-attendance ([5]).

(2)    The FCCA judge stated that he was not in a position to make fresh findings in relation to the applicant’s claim for a partner visa ([5]).

(3)    The applicant then sought an adjournment to enable him to put on further material. The FCCA judge rejected that application (which was made three times) on the basis that his Honour was not satisfied that there would be any utility in granting an adjournment ([6]).

(4)    The applicant submitted that it was not fair that his wife had not been called at the Tribunal hearing and that the Tribunal should have adjourned the matter to permit her to be called ([8]).

(5)    The FCCA judge set out the history of adjournment applications by the applicant to the Tribunal and statements made by the Tribunal to the applicant concerning the importance of the sponsor’s attendance ([9]-[15]).

(6)    The FCCA judge also recorded a submission made by the applicant that the Tribunal’s refusal of a further adjournment to permit his wife to give evidence was unfair or unreasonable ([16]).

(7)    The FCCA judge found that the Tribunal had identified the relevant statutory requirements and its reasons reflected a consideration of the relevant factors ([17]).

(8)    At [18], his Honour said:

It was in those circumstances the Tribunal found the applicant was not credible and placed limited weight on his evidence. The Tribunal was not satisfied that, at the time of the decision, the parties were in a spousal relationship. It was in those circumstances the Tribunal found the applicant did not meet the requirements of cl.820.221 of Schedule 2 to the Regulations and affirmed the decision under review.

(9)    At [19] to [21], the FCCA judge considered and rejected the grounds of review stated in the applicant’s originating application. Those grounds were:

1.    I believe that Administrative Appeal Tribunal has fell into jurisdictional error in making this finding that I did not meet the requirements of cl.820.221(2) and Schedule 3 criteria. I believe so because of Marriage certificate, statutory declarations by sponsor and number of persons, family, party photographs evidences and medical situation I meet 820.221(2)

2.    Schedule 3 criteria I submitted medical certificate dated 17/07/2017 stating I was unfit to travel at the time of application.

(10)    The FCCA judge concluded that the applicant was seeking merits review and had not identified any reasonably arguable case of jurisdictional error.

Legal framework

Extension of time for leave to appeal

24    The relevant considerations in deciding whether to grant an extension of time for leave to appeal are the reasons for the delay and whether the application for leave to appeal has such prospects of success as not to render the extension of time an exercise in futility: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20];see also WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

Leave to appeal

25    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish:

(1)    that in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the appellate Court; and

(2)    that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at [2]; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]-[44]; and Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30].

26    These considerations are cumulative so that leave to appeal will not be granted unless both limbs are made out: Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; (2016) 237 FCR 276 at [12].

Appellant’s submissions

Written submissions

27    The appellant’s submissions set out various facts concerning his immigration history and the history of his application for a partner visa. The submission also sets out facts concerning the relationship between him and the sponsor and the Department’s refusal of his partner visa application.

28    The applicant submitted that “he was totally confused and misunderstood about the Tribunal’s request for all of evidences of his spousal relationship”, saying:

The applicant did not understand why the Tribunal is current and continuing evidence of Spousal relationship and why it is important has he already told to the hearing on 15 November 2017 that he has genuine and continuing spousal relationship.

29    The applicant further submitted that the FCCA judge made a jurisdictional error when he dismissed the applicant’s case under r 44.12 “without giving any consideration of the applicant’s unexpected circumstances and difficulties to submit a submission and the effect of dismissing this case on the life of the applicant and the sponsor”.

30    The applicant contended that he was denied procedural fairness by the Tribunal when it made its decision “on very limited evidence and non-appearance of the sponsor before the Tribunal.” The applicant also submitted that there was no positive evidence that the marriage was fake or contrived and submitted that the Tribunal overlooked the total documents presented by the applicant and made its decision on limited information and by giving emphasis to irrelevant matters.

Appellant’s oral submissions

31    At the hearing, the applicant appeared with the assistance of a Punjabi interpreter. He gave evidence of medical problems, including recent brain surgery, and noted that he will receive further surgery next January 2019. The applicant agreed that the medical records which he supplied were dated from June 2018, but stated that his problems started earlier. In this regard, he referred to the medical certificates provided to the Tribunal in late April 2017. As a result of those medical certificates, the Tribunal adjourned its hearing from 2 May 2017 to 25 July 2017.

Minister’s submissions

32    The Minister submitted that there is no merit in proposed ground (2) of the draft notice of appeal, saying:

It was a matter for the Tribunal to assess the genuineness of the spousal relationship, and to do so on the basis of the available material. The sponsor did not attend either of the scheduled hearings, despite repeated requests from the Tribunal that she should attend, and in the absence of any satisfactory explanation given by the applicant for her non-attendance. The opportunities the Tribunal offered to the applicant to enable the sponsor to attend before it to give evidence are inconsistent with an allegation of bias.

Consideration

33    Proposed ground (2) of the draft notice of appeal is set out at [7] above.

34    There is no evidentiary basis for the contention that the Tribunal misunderstood the facts presented to it concerning the sponsor’s physical or mental health. There was no suggestion that the Tribunal did not accurately record what she was told about that matter. The Tribunal did not receive any medical evidence concerning the sponsor.

35    The Tribunal stated that it was not satisfied that the applicant was a credible witness “[b]ecause of the lack of documentary or corroborative evidence about the parties’ spousal relationship since June 2016”, not because the sponsor did not attend the hearing. The Tribunal’s role was to assess the appellant’s evidence: there is no basis for thinking that it made a jurisdictional error when it found that he was not credible.

36    Further, there is no basis for the contention that the Tribunal’s assessment was biased. The applicant did not identify any particular basis for that contention, which is a serious one that should only be made on proper grounds.

Other matters raised by the applicant

37    The FCCA judge did not make an error by failing to consider the applicant’s unexpected circumstances and difficulties and the effect of dismissing his case. The issue for the Federal Circuit Court judge was whether the applicant had raised an arguable case for relief. His Honour correctly addressed that issue. The applicant did not identify why he said that the Tribunal’s decision was made on very limited evidence. There was no suggestion that the Tribunal did not look at all of the evidence that was available to it. The Tribunal gave the applicant a reasonable opportunity to bring forward more evidence, including, importantly, evidence from the sponsor herself. The fact that there was no positive evidence that the marriage was fake does not mean that it was not open to the Tribunal to conclude that there was no spousal relationship. Although the applicant said that the Tribunal overlooked the total documents and gave emphasis to irrelevant matters, he did not identify which documents were overlooked or which irrelevant matters were considered.

Conclusion

38    The application should be refused, because the proposed appeal has no prospects of success. Accordingly, it is not necessary to consider whether the applicant’s explanation for his delay was unsatisfactory. Costs must follow the event.

Associate:

Dated:     4 December 2018