FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2019] FCA 158

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

O’CALLAGHAN J:

1    These reasons for judgment were made ex tempore at the hearing on 7 February 2018 and accompany the orders set out above.

2    The appellant appeals from the judgment and orders of a judge of the Federal Circuit Court of Australia (the Federal Circuit Court) delivered on 12 September 2018, published as Singh v Minister for Immigration and Border Protection and Another (2018) FCCA 2530, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellant a Partner (Temporary) (Class UK) visa (the visa) under the Migration Act 1958 (Cth). The applicant did not file any written submissions in support of his appeal, which raises eight purported grounds of appeal.

3    At the hearing today I asked the appellant, Mr Singh, whether he had anything to say by way of submissions. Most of the submissions that Mr Singh made, which I should add he made politely and persuasively, concerned events not relating to the decision of the Tribunal in question here but another application for a different partner visa, with a different sponsor. As I explained to the appellant, it is not the function of this court, and it is not permissible for this court, to consider matters that were not before the Tribunal and that happened years after the relevant decision.

4    Mr Grant, who appeared for the Minister, quite properly, having heard what the appellant said about what happened before the Tribunal, agreed that taken together with the grounds of appeal and what was contended for before the primary judge, it was open for the appellant to contend, without the need to seek leave to raise a new ground, that the Tribunal made an error of law by not taking into account his new relationship with a different partner and sponsor for the visa in question before the Tribunal.

5    In order to explain the relevance of that ground of appeal, I should recite the relevant facts. On 5 March 2014, the appellant applied for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (class BS) (Subclass 801) visa on the basis of his relationship with a Ms Salvage who at the time of the making of that application was his de facto partner and sponsor for the purposes of the Act. In the beginning of February 2015 and before the visa application had been determined, the appellant telephoned the Department and told a representative of the Department that he was no longer in a relationship with Ms Salvage and that he wished to lodge an application with a new sponsor.

6    As the decision record of the delegate noted:

On 5 February 2015, you contacted this Department and advised that your circumstances had changed and you were no longer in a relationship with your sponsor. You advised that you wished to lodge a new application with a new sponsor, and enquired about a refund for this application. You were advised to contact the processing office regarding the breakdown of your relationship; however you failed to do so.

On 17 February 2015, you were sent a letter inviting you to comment on the breakdown of your relationship. You were advised that, before a decision was made on your application, you had the opportunity to provide additional information which would be taken into consideration in finalising your application. You were advised that, under certain circumstances, you may still be eligible for grant of a Partner visa. You were given 28 days to provide any claims in regard to this matter. The 28 days have now elapsed and no further correspondence has been received from you.

7    On 1 April 2015, the delegate refused to grant the visa on the basis that the appellant did not meet clause 820.221(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth). Regulation 802.21 is headed “Criteria to be satisfied at time of application”. Regulation 820.221(2)(c)(i) provides:

An applicant meets the requirements of this subclause if …

[…]

(c) the applicant is sponsored:

(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner –    

[…]

8    Regulation 820.22 is headed “Criteria to be satisfied at time of decision”. Regulation 820.221(1) provides:

In the case of an applicant referred to in subclause 820.211(2) […] the applicant […]

(a)    continues to meet the requirements of the applicable subclause

[…]

9    The phrase “sponsoring partner” is defined in clause 820.111 to mean, relevantly:

[T]he Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application as the spouse or de facto partner of the applicant […]

10    On 20 April 2015, the appellant applied to the Tribunal for review of the delegate’s decision. On 21 April 2015, the Tribunal sent a letter by email to the appellant acknowledging receipt of the review application. By letter dated 19 April 2016, the Tribunal sent an invitation to the appellant to attend a hearing on 17 May 2016 in Melbourne. The email was sent to the email address provided by the appellant in his review application. Consistently with s 360A(5) of the Migration Act, the letter noted the following:

If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

11    On 10 May, and then again on 16 May 2016, the Tribunal sent SMS messages to the appellant’s mobile telephone number, reminding him of the hearing that was to occur on 17 May 2016. The hearing was convened on 17 May but the applicant failed to attend and on that day, the Tribunal affirmed the delegate’s decision not to grant the appellant the visa. Relevantly, the statement of decision and reasons of the Tribunal records as follows:

5. On 19 April 2016 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to his application but was     unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 May 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal received no response from the applicant. The Tribunal notes that SMS reminders of the hearing were sent to the applicant’s mobile telephone number on 10 May 2016 and 16 May 2016.

6. On 17 May 2016, the applicant did not appear before the Tribunal at the time and place at which he was scheduled to appear.

7. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

[…]

12. According to the decision record, the applicant contacted the Department on 5 February 2015 and advised that he was no longer in a relationship with his sponsor, and that he wished to lodge a new application with a new sponsor […]

[…]

14. Cl.820.221(1) requires that the applicant continue to meet the requirements of subclause 820.211(2), (3), (4), (5), (6), (7), (8) or (9) or subclause 820.221 (2) or (3). On the information before the Tribunal, only clause 820.211(2) is relevant to the applicant’s circumstances. That subclause requires, amongst other things, that the applicant is the spouse or de facto partner of the sponsoring partner: cl.820.211(2)(a).

[…]

16. The Tribunal has considered the very limited information provided to the Department in relation to the financial, social, household and nature of commitment of the applicant and sponsor and finds that the limited information is outweighed by the information that the relationship between the applicant and sponsor has ceased.

17. On the information before it, the Tribunal is not satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others; or that the relationship is genuine and continuing; or that the applicant and sponsor live together or do not live separately and apart on a permanent basis, and therefore they do not satisfy s.5CB(2)(a),(b)&(c).

12    It may be that it was unnecessary for the Tribunal to make such a detailed conclusion about the fact that the relationship between the applicant and the sponsor, Ms Salvage, had ceased in circumstances where that information had been conveyed by the applicant to the Department both orally and in writing. However, there was no error of law established with respect to those reasons. The conclusion is wholly consistent with what the applicant told the Tribunal.

13    It is also clear, as Mr Grant submitted, that when the Tribunal refers to the limited information provided about the relationship between the applicant and the sponsor at [16] of its reasons, that is a reference to the information provided in the application concerning Ms Salvage. On 10 June 2016, the applicant applied for judicial review of the Tribunal’s decision on six different grounds. It is unnecessary to consider the reasons of the primary judge because the grounds of appeal now sought to be agitated before me are different. As I explained to the appellant during the course of my exchanges with him in court today, the Tribunal did not make an error of law by not taking into account his new relationship in refusing to grant a partner visa. This is because the combined effect of clauses 820.211(2)(c) and 820.221(1)(a), and the definition of “sponsoring partner” in 820.111(a)(ii) is that there is, in cases such as this, in any event, no provision made for the substitution of a sponsor. The sponsor in the application must be the same sponsor at the time that the application is made and at the time the decision is made with respect to the application for the relevant visa. That, it seems to me, is an inevitable consequence of the proper construction of the clauses to which I have referred. It follows that the Tribunal did not make any error of law in not taking into account the appellant’s claim that he was in a new relationship. The other ground of appeal which is arguably separate is contained in [8] of the appellant’s notice of appeal. That ground reads as follows:

The court did not make decision on the grounds of natural justice where the circumstances were beyond my own control and correct the jurisdictional error made in previous decision.

14    In my view, in circumstances where the appellant, having been afforded the opportunity to attend before the Tribunal and having been reminded of it at least twice by SMS message, and providing no explanation even today for his failure to attend the Tribunal, any ground of appeal founded on a natural justice claim cannot succeed.

15    I have reviewed the other grounds of appeal in grounds 1 through 7 of the notice of appeal. It is unnecessary to set them out here. It is sufficient to say that they seek impermissible merits review, as counsel for the Minister submitted. Accordingly, I will order that the appeal be dismissed with costs.

Associate:

Dated:    19 February 2019