Ali Aqa v Minister for Home Affairs

[2019] FCCA 766

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI AQA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 766

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.359A, 359B, 359C, 360, 363A, 379A

Migration Regulations 1994 (Cth)

Cases cited:

Hasran v Minister for Immigration [2010] FCAFC 40

Hossam v Minister for Immigration [2016] FCA 1161
Minister for Immigration v SZVFW [2018] HCA 30
SZFPR v Minister for Immigration [2008] FCA 383
SZFPR v Minister for Immigration & Anor [2007] FMCA 1770

Applicant: FARDASH ALI AQA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1607 of 2018

Judgment of: Judge Driver

Hearing date: 27 March 2019

Delivered at: Sydney

Delivered on: 27 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hammerton of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1607 of 2018

FARDASH ALI AQA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Mr Ali Aqa, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 23 May 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Ali Aqa a partner visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 20 March 2019. 

3. Mr Ali Aqa is a citizen of Afghanistan.[1]  On 2 December 2014, he lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on the basis of his relationship with Fatemah Sharifi (sponsor).[2]

   [1] Court Book (CB) 2

   [2] CB 1

4. On 28 January 2017, the sponsor sent an email to the Minister’s Department, advising that she had separated from Mr Ali Aqa and wished to withdraw her sponsorship.[3]  On 13 February 2017, the Minister’s Department wrote to Mr Ali Aqa by email, advising him that it had received information which indicated his relationship with the sponsor had ceased.  The letter invited Mr Ali Aqa to comment on that information within 28 days.[4]

   [3] CB 72

   [4] CB 74

5. On 9 March 2017, the sponsor sent an email to the Minister’s Department, stating that she had made a mistake in writing to the Minister’s Department to withdraw her sponsorship and had done so because of a difference of opinion between herself and Mr Ali Aqa.  She advised that she wished to continue her sponsorship.[5] 

   [5] CB 80

6. On 13 March 2017, Mr Ali Aqa wrote to the Minister’s Department, advising that his relationship with the sponsor had never ceased and that there had been some differences of opinion between them, which had since been resolved.[6]

   [6] CB 88

7. On 31 March 2017, the Minister’s Department sent a letter to Mr Ali Aqa by email, inviting him to provide statutory declarations from himself and the sponsor as to the circumstances of the parties’ reconciliation.[7]  On 25 April 2017, Mr Ali Aqa, through his migration agent, provided the requested statutory declarations.[8]  On 3 May 2017, the Minister’s Department sent a letter to Mr Ali Aqa by email acknowledging the reconciliation of the relationship and that no further action would be taken at that time.[9]

   [7] CB 95

   [8] CB 97

   [9] CB 110

8. On 17 and 19 September 2017, the sponsor wrote to the Minister’s Department, advising that she wished to withdraw her sponsorship on the basis that the relationship had broken down and she intended to file for divorce from Mr Ali Aqa.[10]

   [10] CB 112, 113

9. On 3 October 2017, the Minister’s Department wrote to Mr Ali Aqa, advising him that the sponsorship had been withdrawn and inviting him to comment.[11]  No response was received from Mr Ali Aqa.[12]

   [11] CB 118

   [12] CB 127

10. On 15 December 2017, the delegate refused the visa application on the basis that Mr Ali Aqa did not meet clause 801.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) at the time of the decision.[13]

    [13] CB 126

11. On 5 January 2018, Mr Ali Aqa lodged an application with the Tribunal for review of the delegate’s decision.[14] On 20 April 2018, the Tribunal sent Mr Ali Aqa a letter pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act).[15] The s.359A letter invited Mr Ali Aqa to comment on or respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review, by 4 May 2018. The relevant information was that the Minister’s Department’s file indicated that his relationship with the sponsor had ended and that the sponsor had withdrawn her sponsorship.[16]

    [14] CB 131

    [15] CB 137

    [16] CB 139

12. On 30 April 2018, the Tribunal received an email from Mr Ali Aqa’s migration agent, requesting further time to provide the information requested. The email did not include any explanation as to the reason the extension was required.[17]

    [17] CB 141

13. On 23 May 2018, the Tribunal affirmed the decision under review. At the time of the Tribunal’s decision, the Tribunal had not received any further information from Mr Ali Aqa’s migration agent in response to the s.359A letter.[18]

    [18] CB 147

Tribunal decision

1. The Tribunal set out the relevant criteria for the grant of the visa and procedural history of the matter.  The Tribunal noted the documents that it had before it and observed that Mr Ali Aqa had provided no other additional evidence or any new claim to the Tribunal as to the criteria under consideration in the review.[19]

   [19] CB 148, [5]

2. The Tribunal noted that Mr Ali Aqa did not respond to the s.359A letter within the prescribed period, despite it waiting a further 19 days from the expiry of the prescribed period to make its decision.[20] In light of these considerations (and having noted that Mr Ali Aqa was not entitled to appear before the Tribunal at a hearing by operation of ss.359C, 360(3) and 363A of the Migration Act), the Tribunal elected to proceed, pursuant to s.359C(1), to make a decision on the review without taking further action to obtain comments from Mr Ali Aqa and without inviting Mr Ali Aqa to appear before it.[21]

   [20] CB 148, [10]

   [21] CB 148, [9]-[10]

3. The Tribunal was satisfied that at the time of decision Mr Ali Aqa was no longer sponsored for the grant of a subclass 801 visa by his sponsoring partner.[22]  In reaching this finding, the Tribunal had regard to evidence in the delegate’s decision that the sponsor had notified the Minister’s Department on 19 September 2017 that she had withdrawn her sponsorship of Mr Ali Aqa and was filing for divorce.  The Tribunal also considered the fact Mr Ali Aqa had not provided any evidence or alternative claim relating to the status of the sponsorship.[23]

   [22] CB 148, [11]; CB 149, [16]

   [23] CB 148, [11]

4. The Tribunal found there was no evidence before it to indicate Mr Ali Aqa fell within the alternative criteria provided for in clause 801.211(3)-(6) that would permit him to be considered for the grant of permanent residence in circumstances where his relationship with the sponsor had ceased.[24] The Tribunal noted that the s.359A letter had also invited Mr Ali Aqa to provide any information he believed to be relevant to these exceptions.[25]  Likewise, the Tribunal found there was no evidence that Mr Ali Aqa met the alternative criteria in clause 801.211(2A) and (8).

   [24] CB 149, [13]

   [25] CB 149, [13]

5. On the basis of the above findings and reasons, the Tribunal was satisfied that at the time of its decision, Mr Ali Aqa did not continue to be sponsored for the grant of a subclass 801 visa and therefore could not satisfy the criteria in clause 801.221(1). Accordingly, the Tribunal affirmed the decision under review. [26]

   [26] CB 149, [18]

The present proceedings

1. These proceedings began with a show cause application filed on 7 June 2018.  Mr Ali Aqa continues to rely upon that application, although he sought the opportunity to amend it.  There is one ground in the application, which is a simple assertion of jurisdictional error. 

2. The application is accompanied by an affidavit filed with it, which raises the same assertion.  I received that affidavit as a submission. 

3. At the outset of today’s hearing, Mr Ali Aqa sought an adjournment for the purpose of amending his application.  I pointed out to him that he had already had about nine months since the registrar’s procedural orders were made on 28 June 2018.  Mr Ali Aqa told me that he had consulted a lawyer who had advised him to seek an adjournment for the purpose of amending the application.  I asked for the name of the lawyer, and Mr Ali Aqa gave me the name of Nishant Malik.[27]  I inquired why Mr Malik was not present in court to make the application himself.  Mr Ali Aqa told me that he was unavailable. 

   [27] Mr Malik is in fact a migration agent who has been assisting Mr Ali Aqa, see CB 132

4. I invited Mr Ali Aqa to telephone Mr Malik and request his attendance if not now, then at 3pm this afternoon.  Mr Ali Aqa told me that he did not think there would be any point in making such a call, because Mr Malik was unavailable.  In the circumstances, I explained to Mr Ali Aqa that I did not think any adjournment was warranted, because there was nothing to indicate how the application would be amended.  I refused the adjournment request.

5. The Minister has filed a court book on 26 July 2018.  Mr Ali Aqa objected to the receipt of the court book into evidence.  This was on the basis that he had only received the court book from the Minister’s solicitor immediately prior to today’s hearing.  The solicitor was unable to produce any correspondence verifying the service of the court book on Mr Ali Aqa.  In the circumstances, I accept his statement that he only received the court book this morning.  As I explained to him, however, the documents in the court book should not come as a surprise to him.  I received the court book into evidence over his objection.  Mr Ali Aqa did acknowledge the receipt of the Minister’s submissions, and he had read them. 

6. I invited oral submissions from Mr Ali Aqa.  He said he was not in a position to make any submissions, because he has not had the benefit of legal advice or assistance, and needed an adjournment in order to get that assistance.  I explained to him the Tribunal’s decision and my view that in the circumstances of the case, there was only one decision open to the Tribunal.  Mr Ali Aqa declined to make any other submissions. 

7. In my view, there is no scope for any arguable case of jurisdictional error to be raised.  I agree with the Minister’s submissions. 

8. By application to show cause filed on 7 June 2018, Mr Ali Aqa advances one ground of review as follows:

   THE DECISION OF TRIBUNAL INVOLVES JURISDICTIONAL ERROR.

9. The contention is wholly unparticularised and does not articulate any arguable case of error on the part of the Tribunal.  Nor can any arguable error be discerned from the decision record.

10. The s.359A letter was sent to the last email address provided to the Tribunal in connection with the review, in accordance with s.379A of the Migration Act. The letter included clear particulars of the information the Tribunal considered to be relevant, the reason why that information was relevant to the review and the consequences of that information being relied on. The letter also invited Mr Ali Aqa to comment or respond to that information within a prescribed period.

11. Once Mr Ali Aqa failed to respond to the s.359A letter before the deadline set by the Tribunal had passed, s.359C(2) of the Migration Act applied. Accordingly, through the operation of s.360(2)(c) of the Migration Act, he was not entitled to appear before the Tribunal,[28] and the Tribunal was not permitted to allow him to do so.[29]  

    [28] Section 360(3)

    [29] Section 363A; Hasran v Minister for Immigration [2010] FCAFC 40 at [29] and [32]

12. Although there is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably,[30] it was open to the Tribunal pursuant to s.359C(2) of the Migration Act to make a decision on the review without taking any further action to obtain Mr Ali Aqa’s views on the s.359A letter. The email dated 30 April 2018 did not include any explanation as to the reason why an extension of time was required. Although the Tribunal did not reply to the email, pursuant to s.359B(4) of the Migration Act it had the power to extend the time for a response but was under no obligation to consider doing so.[31] In any event, the Tribunal’s reasons provided an evident an intelligible justification for not exercising its power under s.359B(4),[32] and it waited until 23 May 2018 to make its decision, allowing Mr Ali Aqa a further 19 days to respond. No further comments or response were received. In the circumstances, it cannot be said that the decision under s.359C(2) was beyond the Tribunal’s power.[33]

    [30] Minister for Immigration v SZVFW [2018] HCA 30 at [89]

    [31] SZFPR v Minister for Immigration & Anor [2007] FMCA 1770 at [22], upheld on appeal in SZFPR v Minister for Immigration [2008] FCA 383 at [7]

    [32] SZVFW at [84]

    [33] SZVFW [2018] at [80]; Hossam v Minister for Immigration [2016] FCA 1161 at [55]-[56]

Conclusion

1. I conclude that Mr Ali Aqa is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale at the time the application was filed.  Mr Ali Aqa did not wish to be heard on costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       29 March 2019