Ahmed v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1443
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahmed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1443
File number(s): SYG 215 of 2020 Judgment of: JUDGE GIVEN Date of judgment: 20 December 2024 Catchwords: MIGRATION – Application for extension of time – where explanation for delay was election by applicant to seek Ministerial intervention in reliance on information set out in Tribunal’s decision Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5F, 359A, 359AA, 476A, 477
Migration Regulations 1994 (Cth) cl 801.221 of Schedule 2
Cases cited: BTI15v Miniter for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CTF21v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 376 FLR 336
DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704
DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: General Federal Law Number of paragraphs: 72 Date of hearing: 23 October 2024 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms C Saunders, MinterEllison Lawyers ORDERS
SYG 215 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SALMAN ALI SALMAN AHMED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time made on 3 February 2020, is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application by which the applicant seeks to extend the time for him to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated
1 October 2019, affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa (visa).
BACKGROUND
The following background and summary of the Tribunal’s decision are respectively derived from the written submissions of the first respondent and the material provided in the Court Book (CB). Unless otherwise indicated, the following background does not appear to be in dispute.
The applicant is a citizen of Egypt. On 18 July 2013, he applied for a Partner (Temporary) (Class UK) (subclass 820) (temporary partner visa) and the visa on the basis of his relationship with a particular person (sponsor) (CB 19).
The applicant was granted the temporary partner visa on 19 May 2014 (CB 364).
On 31 July 2017, the Department of the first respondent invited the applicant to comment on adverse information it had received, namely that the applicant had provided different information to two government departments which indicated that he resided in a separate state from the sponsor, which was said to suggest that he was no longer in a spousal relationship with her (CB 276).
On 28 August 2017, the applicant's representative provided a response to the invitation to comment (CB 288).
On 8 September 2017, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy cl 801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate found that the applicant did not meet public interest criterion (PIC) 4020(1) and was not satisfied there were compelling and compassionate circumstances to warrant waiving PIC 4020(1), pursuant to PIC 4020(4) (CB 364).
On 20 September 2017, the applicant made an application for review of the delegate’s decision to the Tribunal (CB 383).
On 30 September 2019, the applicant appeared before the Tribunal to give evidence and present arguments (CB 419), during which he also provided additional documentary evidence (CB 423).
On 1 October 2019, the Tribunal affirmed the decision under review (CB 454).
Tribunal decision
The applicant confirmed to the Tribunal that he had not lived with the sponsor since 2015, but had travelled to Brisbane several times to spend the time with the sponsor and her son (CB 456 at [8]).
The Tribunal utilised the mechanism provided by s 359AA of the Migration Act 1958 (Cth) (Act) to put certain information to the applicant for comment, namely Centrelink records and the sponsor's interview with the Department. The applicant said that the information was inconsistent with bank statements and that “in his heart” the sponsor was “still his wife and he wants them to be together” (CB 456 at [9]). The applicant also told the Tribunal that he was afraid to return to Egypt because of what people in the community would say about him, and that he had established a life in Australia.
The Tribunal observed that the sponsor did not attend the hearing, that she was living separately from the applicant in Brisbane and that the applicant gave evidence that they had not had any contact since the decision of the delegate in 2017 (CB 457 at [15]).
Regarding the financial aspects of the relationship, the Tribunal noted the parties had a joint bank account which remained open, but that the applicant acknowledged the sponsor was not accessing said account. The Tribunal found there to be no evidence of current joint ownership, liabilities or a sharing of expenses (CB 457 at [16]). Turning to the household, it again noted there was no evidence of joint responsibility for housework or any children and considered in the circumstances, that the separation, which was now more than three years, did not appear to be temporary (CB 457 at [17]).
The Tribunal accepted that there was some evidence to indicate the parties had represented themselves as married to each other, namely, the joint bank account and the applicant's evidence to the Department regarding a tax assessment where he continued to declare the sponsor as his spouse up until June 2017. However, the Tribunal also noted there was no correspondence to evidence that the sponsor had reciprocated this acknowledgement, no current evidence from acquaintances as to the nature of the relationship, nor evidence of joint social activities. Further, it noted that the sponsor had declared herself as being single to Centrelink (CB 457 to 458 at [18]).
The Tribunal accepted the applicant's desire for the relationship to reconcile and that he still considers the sponsor to be his wife. However, on the basis of the evidence before it the Tribunal was not satisfied the parties provided companionship or gave emotional support to one another, nor that the sponsor saw the relationship as ongoing or long-term (CB 458 at [19]). For those reasons, the Tribunal did not accept that the requirements of s 5F(2) of the Act had been met and found cl 801.221 of the Regulations was not satisfied (CB 458 at [20] to [24] and [27]).
The Tribunal separately noted the applicant's evidence regarding why he did not want to return to Egypt. It noted that it had explained to the applicant that he could make an application for Ministerial intervention. The Tribunal said that it decided not to make a referral itself but made clear that this did not prevent the applicant from making any direct request for Ministerial intervention himself (CB 458 at [26]).
APPLICATION TO THIS COURT
These proceedings were commenced by an application for extension of time filed by the applicant on 3 February 2020.
The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 27 February 2020, a Registrar made orders which provided an opportunity to the applicant to file any amended application and listing the matter for callover on a date to be advised administratively to the parties.
On 1 May 2024, the applicant appeared at callover before a Registrar (by telephone) on which occasion orders were made which provided that a hearing date would be advised with a note recording that said hearing would likely take place in the second half of 2024. The orders erroneously referred to the matter being listed for “final hearing”. However, in the absence of an order having been made by the Court pursuant to s 477(2) of the Act, that slip in the order does not have the effect of extending time.
On 30 August 2024, the proceedings were docketed to me, and I made orders which, inter alia, listed the matter for hearing on 17 October 2024. Those orders were made in terms which carried over the error referred to in the preceding paragraph. The applicant was again granted leave to file and serve an amended application. The parties were ordered to file written submissions 14 and 7 days before the hearing, respectively. On 2 September 2024, the solicitors for the first respondent quite properly drew to the Court’s attention the listing error. Accordingly, I made an order to clarify that the hearing event was in respect of the application for extension of time and not a final hearing.
Written submissions were filed on behalf of the first respondent on 8 October 2024. No amended application or written submissions were filed by the applicant in time, or at all.
On 23 October 2024, the matter came before me for hearing of the extension of time application. The applicant appeared in person with the assistance of an interpreter in the Arabic language. The first respondent was represented by his solicitor.
At hearing, the Court Book and supplementary Court Book were tendered for the first respondent and marked Exhibits “1R” and “2R”, respectively. An Affidavit made by the applicant on 17 January 2020 and filed in support of the extension of time application was received as a written submission. Near to the conclusion of the hearing, the applicant said he had a problem with his leg and that he could not go to the hospital as he had no money. He then held up from the Bar table an image to show the Court and said, “this is blood clot”.[1] I explained to the applicant that while the Court understood that his medical situation was difficult, those were matters that could not be taken in to account in relation to the Court’s decision to extend time.
[1] Transcript 23 October 2024 (hearing transcript) at T35.26
Extension of time application
Pursuant to s 477(1) of the Act, an application to this Court for judicial review of a migration decision must be made within 35 days of the date of the decision. The Court has power to extend the 35-day time limit if satisfied that it is necessary in the interests of the administration of justice to do so: see s 477(2) of the Act.
In the instant case, the Tribunal’s decision was made on 1 October 2019. Any application to this Court for judicial review was therefore required to be filed on or by 5 November 2019. The application, which was filed on 3 February 2020, is therefore 90 days out of time.
While there are no further prescribed factors, or mandatory considerations for the Court to take into account when considering whether to extend time under s 477(2), the factors to which the Court will ordinarily have regard include:
(a)the length of the delay;
(b)whether the applicant has an adequate explanation for the delay;
(c)whether the respondent would face any prejudice if an extension of time were granted; and
(d)the merits of the proposed substantive application: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ, Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Katoa) at [12], [17] to [19] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ and [39] to [40] and [49] per Gordon, Edelman and Steward JJ.
In the present case the aforementioned factors do arise, and will be considered as follows.
Delay
As noted above, the application was made 90 days out of time. The period of delay is not insignificant. The length of delay can be the determinative factor in refusing to exercise a discretion, even if the underlying application has merit: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J. It is also established that the longer the delay, the more persuasive the explanation for it needs to be: see Jess v Scott (1986) 12 FCR 187, which was considered in a migration context in Tran (supra).
The delay in the present case is such that, viewed in isolation, it weighs against time being extended. When viewed in terms of the explanation, and of subsequent steps the applicant took (see [38] below) it is a neutral factor.
Explanation for delay
The applicant quite candidly provides the following explanation for why the judicial review application was not made within the requisite 35-day period (errors in original):
During the tribunal hearing, the Member discussed with me that I could refer my matter to the Minister after I explained many humanitarian and compassionate issues in my case. I took on the Member’s suggestion without realizing that there are timeframes for FCC application.
The applicant was not cross-examined about this explanation. There is no transcript before the Court of the Tribunal hearing such that any discussion between the Tribunal and applicant at hearing could be considered beyond what is said in the reasons for decision at [26] (CB 458):
The Tribunal explained to the applicant it can only consider in this review whether he meets the criteria for the visa in relation to the application before it. The Tribunal has no power to consider other circumstances or submissions relevant to humanitarian reasons to grant him a visa. Following the Tribunal’s decision in this matter, it is open to the applicant to seek consideration under s.351 of the Minister’s discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. While the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), it has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.
In the course of his submissions, the Court drew the applicant’s attention to the information sheet which was sent to him under cover of letter at the time he was sent the Tribunal’s decision (CB 451 to 453) (information sheet). The applicant accepted from the Bar table that the letter was received by him and, once it was interpreted to him, also accepts that under a heading “What happens next” that the information sheet contains the following (CB 452):
The Minister may substitute a more favourable decision
The Minister has powers under the Migration Act 1958 to substitute our decision with a decision that is more favourable to the applicant. Generally, the Minister will only do so if there are compelling, compassionate or humanitarian considerations.
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The applicant told the Court at hearing that he understood from its inclusion in the decision that the Tribunal was advising him to seek Ministerial intervention. At hearing the applicant told the Court:[2]
I just- I was followed exactly what she said. I explained to her everything about my story and she suggested to me to go to the Minister.
[2] Hearing transcript at T11.31 to T11.32
In CTF21v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 376 FLR 336 (CTF21), this Court observed the following at [58] and [59]:
In terms of what, if any, impact the intervening application for Ministerial intervention might have on the consideration of delay, judicial views have varied in the past two decades in the migration jurisdiction as to whether this is (or could ever be) a valid explanation for not pursuing judicial review. Cases in which pursuit of Ministerial intervention has been found to be a satisfactory explanation for the delay include: SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] to [21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29] to [30] per Smith FM, Kaur v Minister for Immigration & Citizenship [2010] FMCA 634 at [58] to [72] per Barnes FM (as her Honour then was) and MZYII v Minister for Immigration [2011] FMCA 193 at [21] per Riley FM (as her Honour then was). Conversely, there is also a line of cases in which the election to pursue Ministerial intervention rather than seeking judicial review was found to indicate that the applicant had abandoned the right to seek review of the Tribunal’s decision: see Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [14] per Goldberg J and the cases cited therein.
Ultimately the question of whether an application for Ministerial intervention is a factor sufficient within the context of a case to explain a delay in seeking judicial review (or other relevant relief), in particular such that it would also act to ‘stop the clock’ in the counting of a period of delay, must turn on the facts and circumstances of the case. In the instant proceedings it is not possible to make any particular assessment of relevance of the Ministerial intervention application to the delay, because there is nothing before the Court to inform when the request was refused.
Unlike CTF21, in the instant case there is evidence in the Court Book which indicates that the Ministerial intervention request was refused on 14 January 2020 (CB 475). There is also evidence from a Tribunal case notes document that, on 17 January 2020, the applicant telephoned the Tribunal twice. Those entries record as follows, with references to “RA” being understood as referring to the “review applicant” (CB 462) (anonymisation added):
ID. [number] 17/01/2020 12:57:00 PM Enquiry By Phone
RA called and said that his application for Ministerial intervention was refused. He said that his migration agent told him he cannot apply to the Federal Court, but he is confused because the Tribunal’s decision notification letter said that he can apply to the Court. He said that does not trust his migration agent and asked me to send him a list of migration agents he can speak to.
I confirmed his email address on file and said I would send him an email with a link to the Tribunal’s webpage with information about immigration assistance.
ID. [number] 20/01/2020 08:23:00 AM Enquiry By Phone
RA called after 16:00 on 17/01/2020. He thanked me for sending him information about immigration assistance.
Noting that the Minister did not intervene in his case, RA asked if he can apply for judicial review outside of the 35 day time period. I said that I could not provide him with advice about his situation and suggest he speak to a migration agent about his options.
In the present case, I accept the applicant elected to pursue ministerial intervention. The factual question of whether he understood that there was a judicial review option to pursue and that he was seeking ministerial intervention in lieu thereof is not strictly necessary to resolve. However, it can be observed that, at least as at 17 January 2020 he can be taken to have known that the Tribunal’s information sheet contained information about applying to the Court for review. That is because the Tribunal records him as having said so in his first telephone call that day (see [36] above).
It can also be accepted that once the applicant became aware that the Ministerial intervention request had been refused, he moved with reasonable haste to seek judicial review. Firstly, by reference to his telephone calls to the Tribunal on 17 January 2020 (see [36] above). Next, each of the application for extension of time and the Affidavit in support thereof which were filed to commence these proceedings is also dated 17 January 2020. This suggests that the documents were prepared at or about the same time the applicant was making his telephone enquiries of the Tribunal. As such, there is very little delay between the outcome of the Ministerial intervention refusal and the applicant taking steps to prepare documents to seek judicial review. What remains unexplained is why it is that, if the applicant had prepared the documents to commence the instant proceedings as at 17 January 2020, it took him a further 16 days (until 3 February 2020) to actually lodge them with the Court. However, that period was not, objectively, extensive.
Relevant to the question of whether the applicant’s explanation for why he elected to pursue Ministerial intervention rather than commencing proceedings in this Court within the period prescribed by s 477 of the Act, I accept the applicant’s explanation that his understanding was that the Tribunal was recommending he seek Ministerial intervention, and that he did so based on what he considered to be that recommendation. I accept in all the circumstances of this case that the explanation is reasonable. It warrants adding that, where possible, the Tribunal ought avoid suggestions within the body of the reasons for decision as to available remedies to applicants. The information sheet seems the most appropriate repository for such information. Specifically, inclusion of only one particular course within the body of the reasons for decision is apt to mislead and/or potentially cause applicants to pursue a course based on what they interpret as a recommendation by the very body which has refused them. While the Tribunal’s inclusion of that information within the decision was contextually relevant and is not a legal error, it would be best avoided in future,
For the purposes of assessing this factor, I accept the applicant’s explanation for the delay in commencing the proceedings was reasonable. This weighs in favour of time being extended.
Prejudice
In terms of the relative prejudice to the parties, the first respondent says that if time were to be extended, he would not suffer any particular prejudice other than the significant public interest in there being finality in decision-making: see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15] to [17] per McHugh J. The first respondent also says however, that the mere absence of prejudice to a respondent does not, in and of itself, justify the exercise of the discretion sought by the applicant: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In terms of prejudice to the applicant if time was not extended, the first respondent quite properly acknowledges that no appeal lies from a decision of this Court pursuant to s 476A(3)(a) of the Act, although there is scope to bring an application under s 39B of the Judiciary Act 1903 (Cth): see BTI15v Miniter for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [4] per Logan J.
In SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165 at [58] this Court observed that:
If time were not to be extended, the applicant would be shut out from judicial review of the Tribunal’s decision, with there being no right of appeal to the Federal Court of Australia pursuant to s 476A(3) of the Act. I consider that in the instant case the prejudice to the parties is balanced sufficiently to be neutral, subject to any adjustment to that assessment following consideration of the merit of the applicant’s proposed grounds of review. That is because the prejudice to the applicant of being denied the opportunity of judicial review on a final basis would be more significant if the grounds he was seeking to agitate have merit.
The same approach is appropriate in the instant case. Accordingly, the question of prejudice will be revisited after assessing the merits of the application.
Merit of the proposed substantive grounds of review
If successful in having time extended, the applicant seeks to raise the following grounds of review:
1.At point 17 of the decision record the AAT states that my wife and I were not living together or in the same city for over 3 years. This is misleading. At point 8 I stated that we agreed that I remain in Sydney for work and medical reasons. I also that that I used to travel to be with my wife.
2.At point 15 I stated that my last contact was just before September 2017 but AAT did not ascertain if this was or was not the actual separation date.
3.At point 9 I disputed dates relating to information form Centrelink but was not asked why there was a discrepancy with dates.
4.At point 19 The AAT claims that we were living in separate cities over 3 years with no contact. This is contrary to evidence I gave.
5.The AAT decided not to refer my matter to the Minister without questioning me sufficiently about my concerns to return to Egypt after my failed relationship.
The assessment of whether proposed substantive grounds have a reasonable prospect of success is usually undertaken at an impressionistic level, such that they warrant time being extended in order to be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [45] per Collier, Rangiah and Derrington JJ, MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was), Jackamarra (an infant) v Krakouer (1998) 195 CLR 516 at [7] to [9] per Brennan CJ and McHugh J, BTI15 (supra) at [25] to [26] per Logan J and Katoa (supra) at [16] to [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ. However, there will also be some cases in which a closer examination of the merits is appropriate: see Katoa (supra) at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Grounds 1 and 2
It is appropriate to consider these proposed grounds together. The applicant takes issue with the Tribunal’s assessment of his evidence about the parties having not lived together in the same city for more than 3 years and says that the Tribunal ought to have ascertained for itself the date of separation.
However, the material before the Tribunal, including the applicant's own evidence, was that he and the sponsor had not lived together since 2015 (CB 456 at [8]). Accordingly, it was open to the Tribunal to find as it did at that the applicant and sponsor had not been living together for three years (CB 457 at [17]). The task of the Tribunal in the review was to consider whether the applicant and the sponsor were in a spousal relationship, in accordance with s 5F of the Act and cl 801.221 of Schedule 2 to the Regulations.
The first respondent submits that the role of the Tribunal was not to ascertain the date that the applicant and sponsor separated, and that it was the applicant who gave not only the evidence referred to in the preceding paragraph about them not living together since 2015 but it was also he who told the Tribunal that the sponsor did not access their joint bank account (CB 456 at [9]) and that they had not been in contact since the delegate's decision (CB 457 at [15]).
The first respondent says that the reasons for decision make clear that the Tribunal had regard to the requisite factors in determining whether the applicant and sponsor were in a spousal relationship at the time of the decision and its findings were open to it. The first respondent contends that, in actuality, the first proposed ground of review does no more than seek to have the Court engage in impermissible merits review.
When asked to speak to these grounds at hearing, the applicant said that he believed the Tribunal ought to “have made an investigation”.[3]
[3] Hearing transcript at T23.16
It is well established that the common law duty to inquire can be summarised as giving rise to error where there is:
a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
see Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 (SZIAI) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ.
The applicant’s own evidence supported the finding of the Tribunal about which he now seeks to complain. Given the evidence in question emanated from the applicant there is little scope to understand how it could be argued that there was any outstanding enquiry of the kind referred to in SZIAI upon which the Tribunal had a duty to embark.
Accordingly, at an impressionistic level, grounds 1 and 2 lack sufficient merit to warrant further consideration on a final basis.
Ground 3
By ground 3, the applicant seeks to contend that he disputed the dates relating to information from Centrelink but was not asked by the Tribunal why there was a discrepancy with the dates, referring specifically to paragraph [9] (CB 456) of the Tribunal's reasons for decision, which says as follows:
The Tribunal put to the applicant that information on the Department file indicates that they had separated and were no longer in an ongoing spousal relationship. Specifically, it referred to information obtained form Centrelink records that indicate they had each declared themselves single from 5 September 2014 and the sponsor’s admission during an interview with an officer on 31 July 2017, that she and the applicant were separated due to conflict with her son [child’s name] and were not together since her son [child’s name] came to live with her. The Tribunal put particulars of this information to the applicant pursuant to s359AA, explaining the consequences of reliance on the information, and inviting his comments or response. It also informed him that he could respond now or request additional time. He elected to respond immediately, stating that he disagrees with the information that they were separated from that date and referred to evidence he has given which is inconsistent with this, including bank statements provided to the Department. He said in his heart she is still his wife and he wants them to be together. He still has a bank account open with her (and showed the Tribunal a recent statement, although he acknowledged that she is not accessing the account). He said he has evidence of previous bank statements showing financial support he gave the sponsor and her son. He states they were living together until she went to Brisbane which was not until 2015.
The decision record indicates that the Tribunal put information to the applicant pursuant to
s 359AA of the Act that, from 5 September 2014, Centrelink recorded the sponsor as declaring herself to be single. As can be seen from the decision record, the applicant responded by saying he disagreed that they were separated from that date and referred to bank statements that were inconsistent with this.When this proposed ground was interpreted to the applicant at hearing, he told the Court that:[4]
This is really actually main point because my family is thinking I’m stealing. This is when I explained to my family about this point, they said they’re thinking you’re stealing money from the – from the government. I believe he’s supposed to be making investigation and I explained to her actually about everything, and I gave her evidence and paper about the date and about everything, about the bank statement, everything, and she accept it.
…
I’m not lying, I said exactly what happened, I’m not lying. He’s supposed to be making investigation.
[4] Hearing transcript T23.28 to T23.34 and T23.41
Statements which had been made by the sponsor to Centrelink which were contrary to the evidence being given by the applicant, were put to him for comment in compliance with the Tribunal’s s 359A obligation (which it facilitated by the s 359AA mechanism). Beyond seeking the applicant’s comment on that topic (which the Tribunal did), the applicant has not identified any obvious inquiry about a critical fact, the existence of which was easily ascertainable and which could supply a sufficient link to the outcome to constitute a failure to review. Nor, on an impressionistic level, is one readily discernible.
If the applicant seeks to contend the Tribunal ought to have asked him why there was a discrepancy between certain dates, then I agree with the first respondent that the Tribunal was not required to put to the applicant its:
subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps.[5]
[5] see SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
To the extent that the applicant made submissions to the Court at hearing that his family has interpreted the Tribunal’s reasons in a particular way which causes him difficulty, that cannot conceivably constitute a potential error on the part of the Tribunal.
I am not satisfied that ground 3 enjoys a sufficient prospect of success such that time should be extended to enable its consideration on a final basis.
Ground 4
The fourth proposed ground turns upon [19] (CB 458) of the Tribunal’s decision. That paragraph provides as follows:
Finally, the Tribunal has considered the nature of the commitment between the applicant and sponsor. It accepts on the applicant’s oral evidence that he desires the relationship to be reconciled and for it to continue and he still considers the sponsor to be his wife. However, the evidence before the Tribunal indicates that they are living in separate cities for over 3 years, and have had no recent contact. The Tribunal is not satisfied there is any evidence that they provide companionship or give emotional support to each other. The Tribunal is not satisfied that the sponsor sees the relationship as ongoing or long-term.
When asked to speak to this proposed ground at hearing, the applicant made submissions which largely went to the merits of his claims. In essence, he contended that despite having given his explanations to the Tribunal for why it was that he and the sponsor were living in separate cities, his evidence was not such that it was open to the Tribunal to conclude that they were living separately.
The applicant also made submissions to the effect that at the time his proceedings were on foot in the Tribunal, he was working as a security guard in the building in which the Tribunal was located. The applicant was of the view that people from the Tribunal were “watching” and “reading” him.[6] The applicant also made submissions to the effect that the Tribunal member ought to have facilitated his getting the visa. The Court sought to explain to the applicant that the role of the Tribunal was inquisitorial and not to assist him in obtaining a visa.
[6] Hearing transcript at T25.22
The first respondent says that the applicant has misread [19] of the Tribunal's decision in which it did not find that the applicant had had no contact with the sponsor since they began living in separate cities. The first respondent says that, rather, the Tribunal found that they had been living in separate cities for three years and had no recent contact (emphasis added). These observations are correct.
It is clear that the applicant is dissatisfied with the Tribunal’s findings and, specifically in respect of this proposed ground, the findings in [19]. Aside from the fact that the applicant does appear to have misconstrued the meaning of [19], there is nothing else arising from his submissions in respect of proposed ground 4 which gives rise to an arguable legal error, even at an impressionistic level.
Ground 5
By the final ground the applicant complains that the Tribunal member failed, of her own motion, to refer his case for Ministerial intervention and that if the Tribunal had asked him more questions, it would have been persuaded that the matter warranted a referral of that kind.
I am not satisfied that this ground gives rise to any reasonably arguable error. I accept the submissions of the first respondent that the Tribunal's referral or non-referral for Ministerial intervention is not within the discharge of its duty of review under the Act. The first respondent says that, put simply, it was under no statutory obligation to make a referral and, accordingly, there is no substance to the complaint that it should have questioned the applicant further on those issues: see DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704 at [84] to [87] per Ladhams J. I agree.
Even on an impressionistic level, this ground does not enjoy sufficient merit to warrant consideration on a final basis.
In submissions in reply at hearing before me, the applicant canvassed a multitude of subjects. It was very clear that he was frustrated with the visa application processes and had some complaints regarding his migration agent. The Court can well understand the applicant’s frustrations. However, those matters are not ones which are relevant to the task at hand, which is to determine whether it is necessary in the interests of the administration of justice to extend time to enable the applicant to seek judicial review of the Tribunal’s decision. The applicant also sought to make submissions about his medical conditions, Medicare and to show the Court images of a blood clot from the Bar table. As was explained to him, these are not matters which factor into the decision of whether to extend time.
Merits conclusion
None of the proposed substantive grounds of review have a reasonable prospect of success even at an impressionistic level. As such, this factor weighs against reinstatement.
CONCLUSION
The Court is prepared to accept the applicant’s explanation for his delay in seeking judicial review in this Court and takes into account that once his request for Ministerial intervention was refused, he moved with relative haste to commence these proceedings. However, given the lack of merit in the proposed substantive grounds and that (with that in mind) the question of prejudice also tends to weigh against reinstatement, overall, the Court is not satisfied that it is necessary in satisfied that it is necessary in the interests of the administration of justice to extend time. Accordingly, the application will be dismissed.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 20 December 2024
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