Singh v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent of and incidental to the appeal, fixed in the sum of $3,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The Appellant is a national of India who arrived in Australia on a Student visa on 9 December 2008. That visa expired on 15 March 2011. The Appellant then obtained a second student visa, which expired on 12 September 2011. Before its expiry, on 23 August 2011, the Appellant applied for a Skilled (Provisional) 485 visa. That application was refused on 22 May 2012. 2 The Appellant then sought review of the refusal by the Migration Review Tribunal (the MRT) and, later, judicial review, but was unsuccessful. An application for Ministerial Intervention was also unsuccessful. 3 On 3 February 2014 (after the failure of the judicial review application but before the Minister's decision), the Appellant married Servina Gbojueh. Following his marriage, on 15 April 2014, he applied for a Partner (Temporary) (Class UK) visa. That application was refused by a delegate of the Minister, and that decision was affirmed by the MRT. However, on 23 May 2016 the Federal Circuit Court (the FCC) by consent, set aside that decision and the matter was remitted to the Administrative Appeals Tribunal (the Tribunal) for further hearing. 4 At the rehearing in November 2016, the Tribunal affirmed the decision of the delegate. The Appellant then sought judicial review of that decision in the FCC, but his application was unsuccessful: Singh v Minister for Immigration [2018] FCCA 777. 5 The Appellant now appeals against that decision. 6 From the chronology which I have just set out, it can be seen that the Appellant last held a substantive visa on 12 September 2011. 7 The criteria applicable to the Appellant's application for a Partner visa are contained in Sch 2 subcl 820 of the Migration Regulations 1994 (Cth). Subclause 820.211(2)(d) had the effect, in the Appellant's circumstances, that he had to satisfy criteria 3001, 3003 and 3004 contained in Sch 3, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. 8 Criterion 3001 required that the Appellant have made his application for the Partner visa within 28 days of the expiry of his substantive visa. Plainly, the Appellant could not satisfy that criterion. 9 Accordingly, the question for the Tribunal was whether there were compelling reasons for not applying that criterion. 10 The Appellant relied principally on his marriage to Ms Gbojueh and his domestic arrangements. However, the Tribunal member was not satisfied that the Appellant's relationship with Ms Gbojueh was still on foot in late 2016. The member noted a number of matters raising doubts about the currency of the Appellant's relationship with Ms Gbojueh: despite being requested to do so, Ms Gbojueh had not attended the Tribunal hearing and had not provided an explanation for failing to do so; the Tribunal member had not been able to make telephone contact with Ms Gbojueh; despite being requested to provide documentary evidence substantiating the ongoing nature of the relationship, including ongoing financial arrangements, the Appellant had not done so; although claiming to be the father of a child born by Ms Gbojueh, the Appellant had not, despite being requested to do so, produced a birth certificate or other evidence of the child's paternity and there was some evidence that the Appellant was not the child's father; it seemed to the Tribunal member that the Appellant had limited knowledge concerning other children of Ms Gbojueh and of the arrangements for their support; and despite being requested to provide evidence that he was a recognised contact person for Ms Gbojueh's other children, the Appellant had not done so. 11 The Appellant contended that the lack of support which he received from his family in India was another matter contributing to the existence of compelling circumstances. He attributed this in part to the adverse view his family had taken to him marrying someone outside of his own community. The Tribunal member did not accept that that was so and referred amongst other things to the Appellant's age and to his knowledge of English, these matters in the Tribunal member's view indicating that the Appellant was able to care for himself. 12 The Appellant represented himself in the FCC, as he did in this Court. The grounds of his application to the FCC made pursuant to s 476 of the Migration Act 1958 (Cth), did not raise any identifiable jurisdictional error. Instead the grounds raised matters bearing for the most part on the Tribunal member's assessment of the relationship which the Appellant has with Ms Gbojueh. 13 Despite this, the FCC Judge considered whether any jurisdictional error was apparent in the Tribunal's reasons. He identified the law which the Tribunal member had been required to apply and noted authority elaborating the expressing "compelling reasons": MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, at [10]. See also Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285, at [24]. 14 The FCC judge found: there was no indication in the Tribunal's reasons that the member had failed to consider the material advanced, directly and impliedly, by the Appellant; the Tribunal member had identified the issue for its determination and had "properly acquitted the jurisdiction conferred upon it"; the Tribunal member had undertaken the consideration required by the law of whether compelling reasons did exist to justify the waiver of Criterion 3001; the proceedings in the Tribunal had been procedurally fair; the Tribunal's decision could not be regarded as legally unreasonable because, amongst other things, it had a rational and intelligible basis; and the Appellant was, in effect, seeking a form of merits review, rather than identifying a form of jurisdictional error. 15 On his appeal to this Court, it is incumbent upon the Appellant to demonstrate error by the FCC in the discharge of its jurisdiction under s 476 of the Migration Act. As that jurisdiction did not extend to a merits review of the Tribunal's reasons, the Appellant will not establish error of the requisite kind by reference to matters bearing upon the underlying merits of his claim. As I have said, the Appellant must show that the Tribunal's decision was affected by a form of jurisdictional error or some other error of law which the FCC Judge had failed to recognise: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123 at [13]; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, (2017) 248 FCR 1 at [43]. 16 The appellant's grounds of appeal are as follows: 1. I am not satisfied with the result. 2. I don't think I've done anything wrong, (if I got married). 3. I want to live with my family. 4. As I mentioned before, I can't leave my family and go back to India. 5. I have done studied (sic) in Adelaide and spent 9 years here and got married for four years. 6. My family is from India, not supporting me at all. 7. My relationship with my wife was very good and with kids but case officer is pushing me away from her. 8. Please reconsider my case and circumstances. 17 I accept the submission of counsel for the Minister that these grounds do not identify an error of the requisite kind. The Appellant did not provide an outline of submissions. His oral submissions did not identify a basis upon which this Court could conclude that the FCC Judge had failed to recognise jurisdictional error by the Tribunal. The Appellant emphasised, in particular, his claim that he will not be safe if he returns to India, by reason of the adverse view which he claims his family have taken against him because of his marriage to Ms Gbojueh. This was a matter for the Tribunal to consider. The merit or otherwise of that contention is not a matter for this Court. It is apparent that the Tribunal member did refer to the Appellant's submission to the Tribunal in that respect and no error of a jurisdictional kind has been shown. 18 I have reviewed the Tribunal's reasons and the FCC judgment. I have not been able to identify any error by the FCC Judge. On the contrary, I consider that the FCC Judge was correct, for the reasons which he gave, in dismissing the Appellant's application. 19 For these reasons the Appellant's appeal is dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.