Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application for an extension of time and leave to appeal is dismissed.
2. The applicant 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.

ROBERTSON J: 1 Before the Court is an application for an extension of time and leave to appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia made on 12 September 2019. 2 The grounds of the application are as follows: 1. I have not received written judgement so far in regards to decision by Honourable Judge Driver. In the absence of written judgement I am not able to seek legal advise. 2. AAT made jurisdictional error in deciding that I do not meet criteria in cl.820.211 3 The draft notice of appeal contained the following: The Appellant appeals from the whole of the judgment of the Federal Circuit Court of Australia given on 12 September 2019 at Sydney (File Number: SYG 98 of 2019, Judge Driver). Grounds of appeal Ground One: The Tribunal's purported decision is vitiated by legal unreasonableness. The learned Judge in the Federal Circuit Court is yet to give written decision. Particulars i) Tribunal in the decision stated that I do not meet Clause 820.211. It is submitted that honorable court granted me AVO on the grounds of domestic violence in itself a proof that I was in spousal relationship and therefore I met the criterion of Clause 820.211. When a court determines that I am in a spousal relationship, lower authority such as AAT can not determine otherwise. 4 In summary, the applicant is a citizen of India and at the time of the decision of the Administrative Appeals Tribunal, given on 9 January 2019, was 35 years old. He first entered Australia on 26 April 2007 holding a Student (subclass 572) visa. He was granted a number of Student visas after that date. The applicant's Student visa was cancelled on 22 May 2012 on the basis that he was not studying in Australia. He has not held a substantive visa since that date. 5 The applicant filed with the Tribunal an application for review of the decision to cancel his Student visa. The applicant withdrew this review application and the matter was finalised by the Tribunal on 7 January 2013. 6 On 6 October 2012 the applicant married Ms Rebecca Young, who was born in Australia and is an Australian citizen. 7 On 28 December 2012, the applicant applied for a Partner visa. He withdrew that application on 20 June 2014 after he was requested to provide compelling reasons why the relevant criteria in Schedule 3 to the Migration Regulations 1994 (Cth) should be waived. 8 On 16 July 2014, the applicant filed a further (the present) application for a Partner (Temporary) (Subclass 820) visa. The sponsor of the applicant was Ms Young. 9 On 23 December 2015, a delegate of the Minister decided to refuse to grant the applicant a Partner visa. The delegate was not satisfied that the applicant was the spouse of the sponsoring partner as defined in s 5F of the Migration Act 1958 (Cth). The delegate was also not satisfied that the applicant held a substantive visa at the time of the visa application or that he satisfied criterion 3001 in Schedule 3 to the Migration Regulations. The delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl 820.211(2)(d)(ii) in Schedule 2 to the Migration Regulations. 10 The relevant provisions are in the following terms. Migration Act 1958 (Cth) … 5F Spouse (1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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. (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist. Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists. … Migration Regulations 1994 (Cth) … 1.15A Spouse (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist. (2) If the Minister is considering an application for: (a) a Partner (Migrant) (Class BC) visa; or (b) a Partner (Provisional) (Class UF) visa; or (c) a Partner (Residence) (Class BS) visa; or (d) a Partner (Temporary) (Class UK) visa; the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3). (3) The matters for subregulation (2) are: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one person in the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; and (b) the nature of the household, including: (i) any joint responsibility for the care and support of children; and (ii) the living arrangements of the persons; and (iii) any sharing of the responsibility for housework; and (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married to each other; and (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; and (d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long-term one. (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3). … Schedule 2 - Provisions with respect to the grant of Subclasses of visas … 820.21 - Criteria to be satisfied at time of application 820.211 (1) The applicant: (a) is not the holder of a Subclass 771 (Transit) visa; and (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9). (2) An applicant meets the requirements of this subclause if: (a) the applicant is the spouse… of a person who: (i) is an Australian citizen …; (ii) … and (c) the applicant is sponsored: (i) if the applicant's spouse … has turned 18 - by the spouse …; or (ii) …; and (d) in the case of an applicant who is not the holder of a substantive visa - either: (i) …; or (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. … Schedule 3 - Additional criteria applicable to unlawful non‑citizens and certain bridging visa holders 3001 (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: (a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of: (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully; or (d) if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of: (i) the day when that last substantive visa ceased to be in effect; and (ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision. … 11 The applicant then applied to the Tribunal for review of the delegate's decision. The applicant provided a copy of a Provisional Order - Apprehended Domestic Violence Order dated 21 December 2015 (Provisional ADVO). The application had been taken out on behalf of the applicant with the defendant stated to be the sponsor. The matter was listed for 6 January 2016. 12 The applicant attended a hearing before the Tribunal. The Tribunal affirmed the delegate's decision as it was not satisfied that the applicant and sponsor were in a genuine relationship or that there were compelling reasons not to apply the Schedule 3 criteria. 13 An application by the applicant for judicial review of this decision was made to the Federal Circuit Court which remitted the matter by consent on the basis that the Tribunal had failed to advise the applicant of certificates which related to certain documents on the Department file. 14 The Tribunal differently constituted wrote to the applicant on 29 October 2018 inviting him to a further hearing before the Tribunal. 15 On 12 December 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing. 16 The Tribunal gave the applicant an opportunity to provide further information by 18 December 2018. On that date the applicant provided to the Tribunal a statutory declaration dated 18 December 2018 and a document titled "Final Order - Apprehended Domestic Violence Order" dated 6 January 2016 (Final ADVO) which identified the defendant as the sponsor. 17 On 9 January 2019, the Tribunal made a decision affirming the delegate's refusal decision. 18 The Tribunal held that as the visa application was not made within 28 days of the relevant day the applicant did not satisfy criterion 3001. The Tribunal found that the applicant last held a substantive visa on 22 May 2012, which was more than two years prior to filing the current visa application. The Tribunal then turned to consider whether there were compelling reasons for not applying the Schedule 3 criteria, in terms of cl 820.211(2)(d)(ii). In so considering, the Tribunal stated that it had accepted at face value the applicant's claims that he and the sponsor were in a genuine relationship and the circumstances of that claimed relationship, but ultimately concluded that it was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. 19 Although perhaps not necessary to its decision, the Tribunal proceeded to consider whether the applicant was ever the spouse of the sponsor as defined in s 5F of the Migration Act. The Tribunal found the weight of the evidence did not support a finding that the parties at any time had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the claimed relationship between the parties was ever genuine or continuing or that they had lived together. The Tribunal was not satisfied that the requirements of s 5F(2) were met at the time the visa application was made. Therefore, the Tribunal decided, the applicant did not meet cl 820.211(2)(a). 20 On 16 January 2019 the applicant filed an application in the Federal Circuit Court seeking judicial review of the decision of the Tribunal. 21 On 8 May 2019, the applicant filed a Notice of Address for Service form appointing his solicitor. 22 On 9 May 2019, the applicant's solicitor filed an amended application for judicial review on the applicant's behalf. The applicant subsequently filed two affidavits (on 9 May 2019 and 29 August 2019 respectively) which were sworn by the applicant and witnessed by the applicant's solicitor. 23 On 12 September 2019, at a scheduled show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth), having noted the appearances of the legal representatives for the applicant and for the respondents (it appears this ought to have been a reference to the first respondent), the primary judge made the following orders: BY CONSENT, THE COURT ORDERS THAT: (1) The title of the first respondent is amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. (2) The application as amended on 9 May 2019 is dismissed. THE COURT ORDERS THAT: (1) The applicant is to pay the first respondent's costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(l) and item 2 of Division l of Part 3 of Schedule l to the Federal Circuit Court Rules 2001 (Cth). 24 The first respondent, the Minister, relied in this Court on an affidavit sworn 28 January 2020 by Ms Ada Wong. She was the solicitor for the first respondent who had primary carriage of the matter in the Federal Circuit Court. She deposed that on 12 September 2019 she attended the scheduled show cause hearing in the Federal Circuit Court before the primary judge. Prior to the commencement of the hearing and outside the Court, the applicant's solicitor told her that the applicant did not want to proceed with the Federal Circuit Court proceedings. When the show cause hearing commenced at around 2:20 PM Ms Wong explained to the primary judge that the applicant's solicitor had so indicated. The application was dismissed by consent. Ms Wong annexed to her affidavit the transcript of the short hearing. Ms Wong also annexed to her affidavit a two-page file note of the conversation she had on that day, 12 September 2019, with the solicitor for the applicant. 25 The application for an extension of time and for leave to appeal was filed in this Court on 10 October 2019. 26 No written submissions were filed by the applicant. The applicant did however seek to give evidence as to the circumstances in which the primary judge made the consent orders on 12 September 2019. I allowed that course to be taken and the applicant gave his evidence from the bar table, but on affirmation, and he was cross-examined. 27 I find that the applicant retained his solicitor in January 2019 and had a number of communications with him in the period from February 2019 to, at the earliest, May 2019, including in relation to the preparation of submissions to the Federal Circuit Court. The applicant met with his solicitor on the hearing date, 12 September 2019, who "at the last minute" advised the applicant to withdraw his case. The applicant said to his solicitor at that time that the solicitor should have told him before and "it's too late." Nevertheless, I find, the applicant was aware that his application to the Federal Circuit Court was being dismissed and, although he did not agree with his solicitor's advice, he went along with the dismissal anyway and allowed his case to be dismissed. In making these findings, I take into account that the applicant is not legally qualified and that although English is not his first language he is reasonably competent in it. 28 In oral submissions, the applicant said that he had submitted the final ADVO to the Tribunal. He said his relationship with his sponsor was genuine and he did not pay her any money. They both had a house key. The ADVO meant that they were living together. He complained about what the Tribunal had said in the course of the hearing before it, particularly so far as concerned the allegation that he had paid money to the sponsor for the relationship. As may be seen, the submissions go to the merits of what the Tribunal decided. 29 The first respondent made written submissions as follows. 30 The first respondent contended that the applicant was estopped by the doctrines of res judicata and Anshun estoppel from pursuing an appeal against the primary judge's orders as both parties in the Federal Circuit Court proceedings were legally represented and the orders were made with the consent of both parties. 31 Further, the orders were made by consent at the commencement of the show cause hearing scheduled on 12 September 2019. Accordingly, the first respondent submitted there was no substantive consideration by the primary judge of the applicant's application filed in the Federal Circuit Court on 16 January 2019, which sought judicial review of the decision of the Tribunal dated 9 January 2019 affirming the decision of a delegate of the first respondent made on 23 December 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa. 32 The first respondent submitted that the applicant had not sought to impugn the basis upon which the orders of the primary judge were made. Nor had he made any attempt to engage with or address the primary judge's orders. Instead, the applicant essentially sought to pursue arguments on the appeal that the Tribunal committed a jurisdictional error in concluding that the applicant was not in a spousal relationship at the time the visa application was made. This was not an appropriate approach on an appeal, which required the identification of error on the part of the primary judge, and was not merely a second trial hearing. 33 For these reasons, the first respondent submitted, the applicant was estopped from pursuing his application for an extension of time and leave to appeal, and any such application lacked sufficient prospects to succeed. 34 The first respondent submitted that an order made, or a judgment given, by consent bound the parties to the judgment or order as effectively as if the judgment had been given or the order made after a fully contested hearing: Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; 205 ALR 198 at [18], [24]-[25]. The applicant's consent to the dismissal should be treated as an indication that he was prepared to accept the Federal Circuit Court's orders and that he did not intend to challenge the decision further: Daniel at [14] and BNC15 v Minister for Immigration and Border Protection [2017] FCA 1318 at [34]. This view was supported unequivocally by the contents of the affidavit affirmed by Ms Wong annexing the transcript of the proceedings before the primary judge, the first respondent submitted. 35 The first respondent submitted that the unorthodox history and nature of the present proceedings meant the question of whether or not the orders of the primary judge were final or interlocutory and if an extension of time and/or leave to appeal was required was a vexed one. 36 To the extent that an extension of time and/or leave to appeal was required, the first respondent submitted the proposed appeal lacked sufficient merit to warrant either an extension of time or a grant of leave. 37 Turning to the two proposed grounds of appeal, the first respondent submitted the first ground was misconceived. No reasons for judgment were ever provided by the primary judge because the applicant confirmed at the hearing through his solicitor that he wanted to end his proceedings and entered into consent orders dismissing the application with costs. 38 As to the second ground, the first respondent submitted it lacked particulars but inappropriately sought judicial review of the Tribunal's decision for the first time on an appeal in circumstances where the applicant in essence sought again to challenge the Tribunal's decision despite having entered into orders dismissing the application. 39 The first respondent submitted that the applicant alleged that the Tribunal's decision was vitiated by legal unreasonableness and contended it was unreasonable for the Tribunal to find that he did not meet cl 820.211 in circumstances where a court had granted him an ADVO. He stated the ADVO was proof in itself that he was in a spousal relationship and therefore met cl 820.211. He argued that as the court determined he was in a spousal relationship, a "lower authority" such as the Tribunal could not determine otherwise. 40 The first respondent submitted that this ground was not raised before the primary judge and the fundamental basis of the contention was misconceived. Even if an ADVO was issued to the applicant, this did not mean that the Tribunal was relieved of (or not required to complete) its statutory task to assess whether or not the applicant met the requirements for the grant of a Partner visa. 41 In any event, the first respondent submitted, the Tribunal was plainly aware that the applicant had claimed he was issued with a provisional and a final ADVO naming the defendant as the sponsor, referring to the Tribunal's reasons at [17] and [49]. It also expressly considered the applicant's evidence about the circumstances leading to the ADVO in assessing whether or not he and the sponsor were in a genuine spousal relationship: eg, at [93]-[94] and [109]. 42 At its highest, the first respondent submitted, the applicant's complaint rose no higher than to challenge the weight that the Tribunal accorded particular evidence, but the Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it considered appropriate in all the circumstances. 43 The first respondent submitted the Tribunal's decision was not one that lacked an "evident and intelligible justification". The test for unreasonableness was "stringent" and should not be applied outside of rare cases. Further, unreasonableness was not a means for challenging a decision on the basis that the Court disagreed with the consideration of matters or the evaluative judgments made by the decision maker.