FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2019] FCA 631

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as assessed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, Mr Vikramjeet Singh, is a citizen of India.

2    The Department of Immigration and Citizenship received Mr Singh’s application for a Partner visa in February 2014. The sponsor to that application was Ms Gabrielle Thorley.

3    A delegate of the Minister for Immigration and Border Protection refused the application in May 2016 under s 65 of the Migration Act 1958 (Cth) (the “Migration Act”). The delegate was not satisfied that Mr Singh satisfied cl 820.211(2)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”). On that basis, the delegate was of the view that Mr Singh was not eligible for the subclass 820 visa and, in turn, therefore not eligible for the subclass 801 visa. The delegate was of the view that Mr Singh did not meet the definition of a de facto partner under s 5CB and, relevantly for present purposes, that he was not “the spouse of the sponsor” for the purposes of s 5F of the Migration Act. Section 5F provided, at the relevant times, in part as follows:

Spouse

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

  (2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)    the relationship between them is genuine and continuing; and

   (d)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

4    Review of the delegate’s decision was sought by the Administrative Appeals Tribunal (the “Tribunal”). In March 2017, the Tribunal affirmed the delegate’s decision. Review of the Tribunal’s decision was sought by the Appellant. In August 2018 the Federal Circuit Court of Australia dismissed the application: Singh v Minister for Immigration & Anor [2018] FCCA 2312 (“Singh”).

5    Mr Singh then filed in this Court a Notice of Appeal.

6    Upon the hearing of the appeal, Mr Singh appeared unrepresented. The Respondent Minister was represented by Counsel. The Second Respondent filed a Submitting Notice, save as to costs.

7    The appeal is to be dismissed with costs.

The decisions of the Tribunal & the Federal Circuit Court

8    Reservations as to the marriage relationship as between Mr Singh and Ms Thorley pre-dated the decision of the Tribunal. Reservations were first raised by the delegate who, in her Decision Record, dated 26 May 2016, advised Mr Singh as follows:

You and your sponsor claimed to have known each other since 23/12/12 and were married on 05/10/13. I accept that you and your spouse are lawfully married as you have provided a marriage certificate. However, you have not provided any evidence of mutual obligation, companionship, emotional support and long term planning – typical elements of a marriage.

I note that on 19/06/2015 your sponsor departed Australia and has not returned.

On 10/09/2015 I contacted you via phone to inquire about your sponsor’s departure and return date. You stated that the reason for her departure was due to her parent’s recent divorce and that your sponsor would return within the following three months. You also stated that you intended to join her but could not obtain time away from work. It is now nearly one year since your sponsor has departed.

On 11/02/2016 the department sent a text message asking you to contact me. You have not contacted me nor have you answered your mobile when I have attempted to contact you to discuss your application.

On the evidence provided, and taking into account the time you have lived apart and your stated future plans, I am not satisfied that you provide each other with companionship and emotional support, or that you have a joint commitment to a shared life.

I am not satisfied that you see the relationship as a long-term one, that you draw emotional support and companionship from each other or that you have a commitment to a shared life together.

9    These reservations were also foreshadowed by the Tribunal in advance of the hearing. In its invitation to attend a hearing before it, dated 19 January 2017, the Tribunal thus stated that:

We have considered the material before us but we are unable to make a favourable decision on this information alone.

That invitation also indicated to Mr Singh that it “may wish to take evidence from Gabrielle Frances Thorley. Please arrange for Gabrielle Frances Thorley to attend the hearing”. An email from the Tribunal, dated 3 March 2017, indicated, however, that it had received no response from Mr Singh in respect to the invitation.

10    As events turned out, Mr Singh declined to attend the hearing before the Tribunal. The Tribunal proceeded to resolve the application for review in his absence.

11    In reaching its conclusion, the Tribunal approached the task of resolving whether Mr Singh and Ms Thorley were in a genuine and continuing spouse relationship by reference (inter alia) to a consideration of:

    the “Background” to their relationship, including when they first met (at paras [13] to [17]);

    the “Financial Aspects of the Relationship” (at paras [18] to [20]);

    the “Nature of the Household” (at paras [21] to [23]);

    the “Social Aspects of the Relationship” (at paras [24] to [26]);

    the “Nature of Commitment to Each Other” (at paras [27] to [33]); and

    “Other matters” (at paras [34] to [39]).

12    Before the Federal Circuit Court, two paragraphs of the Tribunal’s Statement of Decision and Reasons (“the Tribunal’s reasons”) assumed particular relevance – namely, paras [17] and [19]. Those paragraphs, together with the context in which they appear, were expressed as follows:

Background

13.    The parties claim to have met at Hooters in Blacktown, where the applicant was working at the time, just before Christmas 2012. The sponsor claims that the applicant proposed to her in 2013 on her birthday, 23 July, and she accepted his marriage proposal. Three months later, on 5 October 2013, they were married at Five Dock Bay, Drummoyne. The marriage was witnessed by Amanpreet Singh and Kulvinder Singh.

14.    On 19 June 2015, the sponsor departed Australia and has not returned. The Tribunal has received no additional information from the applicant since the time of application for the Tribunal to consider when reaching its decision. On the evidence and information available, the Tribunal has formed a view that since at least June 2015 the parties have not been living together.

…

17.    The applicant has provided no additional information in support of being in a married relationship with the sponsor since the time of application, despite being invited to do so by the Tribunal in a letter dated 19 January 2017 inviting him to attend the Tribunal hearing and again in an email dated 3 March 2017. The Tribunal relies on this lack of evidence and on the movements records of the sponsor to make a finding that it considers the parties are no longer together and have not been living in a married relationship since at least 2015 when the sponsor travelled offshore and they are therefore not in a married relationship at the time of this decision.

Financial Aspects of the Relationship

…

19.    An Australian Super letter, dated 2 December 2013, in the name of the applicant, member number 700399109, nominating the sponsor as the sole beneficiary was provided. The letter was certified as a true copy of the original by David Wai Kwong Fu, Justice of the Peace #190701, Campsie. This information has been considered and the Tribunal notes that no statement of account was provided. The letter has not therefore been given only very limited weight to support the claim that the parties shared finances at the time of the application.

13    Paragraphs [17] and [19] assumed relevance because the three Grounds of Review, as advanced before the Federal Circuit Court, were as follows (without alteration):

1.    In finding that the applicant and sponsor are not in a married relationship at time of decision (at [17] Decision Record) the Second Respondent acted erroneously and unreasonably as there was no evident and intelligible justification for that finding.

Particulars

a.    The Second Respondent drew the conclusion that because the sponsor had departed Australia, the sponsor and applicant had ceased being in a married relationship.

b.    The Second Respondent had committed an error in logical reasoning to conclude that the relationship ceased by virtue of the sponsor and applicant being in different geographical locations.

2.    In making a finding that the Australian Super letter dated 2 December 2013 (at [19] Decision Record), the Second Respondent made an erroneous finding that was illogical or irrational.

Particulars

a.    The word ‘not’ in the last sentence at [19] results in an illogical or irrational statement in regard to the letter dated 2 December 2013.

3.    In making the finding regarding an Australian Super letter dated 2 December 2013 (at [19] Decision Record), the Second Respondent identified a wrong issue or ignored relevant material.

Particulars

a.    The Second Respondent attributed the nomination of the sponsor as sole beneficiary as a financial aspect of the relationship.

b.    The Second Respondent had failed to recognise the nomination of the sponsor as sole beneficiary as the mutual commitment between the sponsor and applicant.

14    The Federal Circuit Court rejected each of these grounds.

The Grounds of Appeal

15    The Grounds of Appeal before this Court as set forth in Mr Singh’s Notice of Appeal were expressed as follows (without alteration):

1.    That the Administrative Appeals Tribunal erred and acted unreasonably when it decided that the absence of the sponsor in Australia, is indicative of that there was no genuine spousal relationship between the applicant and the sponsor. By identifying a wrong issue and or asking a wrong question the Tribunal made a jurisdictional error;

2.    That the Administrative Appeals Tribunal erred when it ignored relevant material, notably, the nomination of the sponsor as the sole beneficiary of the applicant’s Australian Super letter dated 2 December 2013;

16    If the form of these grounds be left to one side, a fundamental difficulty confronting Mr Singh in any attempt to challenge the decision of the Tribunal is the fact that he was invited to attend the hearing before the Tribunal and failed to do so. His failure to attend had the consequence that he declined an opportunity to explain or clarify aspects of his evidence and left it open to the Tribunal to conclude that such evidence as he may have given would not have assisted his claims: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25] (“S58 of 2003”). Ryan, Merkel and Conti JJ there observed with reference to the facts then before that Court:

[25]    In any event, whether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a tribunal has arrived at its decision. In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them. Conversely, his conduct left it open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa…

After citing this passage, Siopis, Logan and Markovic JJ in SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16, (2018) 259 FCR 154 at 173 similarly concluded:

[78]    The very same can be said here. The appellant was given an opportunity to attend a hearing in circumstances where he knew that the Tribunal could not reach a favourable decision on the information before it. He declined that invitation and did so at a time when he was represented by a solicitor. In doing so, he should be taken to have assumed the same risk as was identified in S58, namely, a risk that “inconsistencies, omissions or other unsatisfactory features” of his material would be noted by the Tribunal without his having an opportunity to explain or clarify them. That in fact is what occurred.

See also: MZWPN v Minister for Immigration and Multicultural Affairs [2006] FCA 807 at [12] to [13] per Kenny J. The observations in S58 of 2003 assume even greater relevance when it is recalled that the reservations as to the case sought to be advanced by Mr Singh had been:

    brought to Mr Singh’s attention by the delegate; and

    reiterated in the Tribunal’s invitation to him to attend a hearing because it was unable to reach a favourable decision on the materials then available.

17    Further difficulties confronting Mr Singh in the present proceeding in this Court are that the purported Grounds of Appeal suffer from at least three further problems, namely:

    the fact that neither of them identify any appellable error said to have been committed by the Federal Circuit Court. Each of the Grounds is directed to error said to have been committed by the Tribunal;

    the fact that the first Ground, despite using language of unreasonableness, is more a plea to review the factual merits of the decision made by the Tribunal rather than an identification of legal error; and

    the fact that the second Ground runs contrary to the consideration in fact given to the “AustralianSuper letter” in the Tribunal’s reasons.

Each of these concerns should be briefly expanded upon.

18    The first of these difficulties exposes a recurring difficulty posed by unrepresented claimants under the Migration Act. The function presently being performed by this Court is an appellate function directed to the correction of any errors said to have been committed by a Judge of the Federal Circuit Court. It is not the function of completely placing to one side the decision of that Court and conducting for itself a review of a decision of the Tribunal. A Notice of Appeal, in order to comply with the Federal Court Rules 2011 (Cth), must identify appellable error said to have been committed by a primary Judge.

19    The recurring nature of the difficulty, and the fact that many appellants in this area of the law are unpresented, has frequently led Judges of this Court to construe ill-expressed Grounds of Appeal as an allegation that the primary Judge erred in rejecting the arguments presented for resolution by that Court.

20    So construed, no appellable error is discernible in the manner in which the primary Judge in the present case rejected each of the three Grounds of Review before the Federal Circuit Court.

21    The fact that Ms Thorley had left Australia in June 2015 and had not returned was a matter which obviously played on the mind of the Tribunal and formed part of its conclusion that she and Mr Singh were not in a “genuine married relationship at the time of this decision” (see the Tribunal’s reasons at para [15]). It was open to the Tribunal to reach that conclusion and, more importantly, no appellable error is exposed in the primary Judge rejecting the first Ground of Review: cf. Singh [2018] FCCA 2312 at [27] to [33].

22    The second Ground of Review, focussed as it was upon para [19] of the Tribunal’s reasons, asserted jurisdictional error by reason of the Tribunal there concluding that the “letter has not therefore been given only very limited weight…”. The primary Judge, with respect, was correct in concluding that that sentence exposed a typographical error and should be read as deleting the reference to “not”: cf. Singh [2018] FCCA 2312 at [22] and [34] to [37].

23    With the third Ground of Review, as correctly pointed out by the primary Judge, “there has been no constructive failure by the Tribunal to exercise jurisdiction due to any failure to refer to the AustralianSuper letter in the context of its consideration of the nature of the commitment between the Applicant and the sponsor”: Singh [2018] FCCA 2312 at [44].

24    If the Grounds of Appeal be construed as an argument that the primary Judge erred in rejecting the Grounds of Review then before that Court, the argument is rejected.

25    Even if the Grounds of Appeal be construed as arguments that the primary Judge erred in a more broadly expressed argument that the Tribunal had acted “unreasonably”, such an argument would itself be without merit. The Tribunal’s decision could not be characterised as “unreasonable” in circumstances where Ms Thorley had been absent from Australia since June 2015 and where Mr Singh had failed to attend the hearing before the Tribunal and adduce such evidence as he then saw fit with respect to the ongoing and continuing nature of their relationship. Nor could it be said that the Tribunal had “ignored relevant material”. The content of the AustralianSuper letter was the very subject matter of part of the Tribunal’s reasoning.

26    However the Grounds of Appeal before this Court be construed, they are without merit.

CONCLUSIONS

27    Notwithstanding deficiencies in the manner in which the Grounds of Appeal have been expressed, no appellable error is discernible in the reasons of the primary Judge.

28    The appeal should be dismissed.

29    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

 2.    The Appellant is to pay the costs of the First Respondent, either as assessed or agreed.

Associate:    

Dated:    8 May 2019