Allam v Minister for Immigration

[2013] FMCA 246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLAM v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 246

MIGRATION – Where applicant failed to respond to request for information under s.359 – where no utility in granting review.

Migration Act 1958 (Cth), ss.65, 359, 359C(1),(2), 360

SZFDE v Minister for Immigration & Anor [2007] HCA 35
Minister for Immigration & Anor v SZLIX [2008] FCAFC 17

Applicant: HOUSSAM ALLAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2869 of 2012

Judgment of: Raphael FM

Hearing date: 27 March 2013

Date of Last Submission: 27 March 2013

Delivered at: Sydney

Delivered on: 27 March 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2869 of 2012

HOUSSAM ALLAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Lebanon who applied to the Department of Immigration and Citizenship for a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth)[1] on 21 August 2008.  On 5 July 2008 he had married, in Lebanon, a wife who was an Australian citizen [CB 82].  He applied for his visa in Lebanon and later came to Australia.  On 21 January 2011 a delegate of the Minister refused to grant the visa because it had received information from the spouse, dated 10 August 2010, that the parties had been divorced in Lebanon and that the relationship was over [CB 81].  On 7 February 2011 the applicant applied to the Migration Review Tribunal for review of the delegate’s decision.  The applicant was represented at the time by Simon Diab & Associates.  On 15 October 2012 the Tribunal wrote to the applicant inviting him to comment on or respond to information that might be the reason or part of the reason for affirming the decision under review.  This letter was written in accordance with the provisions of s.359A of the Act.  The letter required a response by 12 November 2012.  It contained in bold the following:

   If the Tribunal does not receive your comments or response within the time period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information.  You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. [CB 131]

   [1] “Act”

2. Under s.359C of the Act if a person is invited in writing to give information and does not respond the Tribunal is entitled to make a decision on the review without taking any further action to obtain his views on the information and under s.360 of the Act the requirement to invite an applicant to appear is excluded if s.359C(1) or (2) apply to the applicant. In this case the 12 November was a Monday. On 9 November, the Friday, Simon Diab & Associates wrote to the Tribunal in the following form:

   “Dear Member,

   I have received your letter, dated 15 October 2012 regarding ‘Invitation to Comment’. I have advised the applicant Mr Houssam Allam accordingly.  I are [sic] instructed that Mr Allam requires an extension of time to collate the necessary evidentiary documents to support his case.  I request that you grant us an extension to 31 January 2013.  I appreciate your support and kind consideration of this request.”  [CB 132]

3. On 12 November at 9.45a.m. an officer of the Tribunal telephoned Mr Diab or his office and advised that the member had not agreed to grant an extension of time and a letter confirming this was faxed to their office at 9.56a.m.

4. Notwithstanding the refusal to grant the extension and consequently the decision not to invite the applicant to appear when no response to the s.359A was received the Tribunal did not make its decision until 26 November 2012.  Had any documentation arrived between 12 November and the 26 November the Tribunal would have taken it into account.  On 26 November 2012 the Tribunal determined to affirm the decision under review.

5. In its short decision the Tribunal set out the relevant law [CB 142-144] and noted the evidence which it had in its possession.  The Tribunal explained:

   “[7]The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Regulations.  There are no criteria to be satisfied at the time of application: cl.100.21.  The primary criteria to be satisfied at time of decision are set out in cl.100.22.  Clause 100.221(1) requires an applicant to meet the requirements of (2), (2A), (3), (4) or (4A).  Broadly speaking, cl.100.221(2) and (2A) require that at the time of decision either:

   ·   The applicant is the holder, or in certain cases the former holder, of a Subclass 309 visa, and is the spouse of the sponsoring partner and that with limited exceptions, at least 2 years have passed since the application was made: c.100.221(2); or

   ·   The applicant is the holder of a Subclass 309 visa granted by the Minister personally, and is the spouse of the sponsoring spouse and that with limited exceptions, at least 2 years have passed since the decision to grant the Subclass 309 was made: cl.100.221(2A).

   [8]Subclauses 100.221(3) and 100.221(4) provide exceptions to the relationship requirement where the sponsor has died or where the relationship has ceased and either relevant family violence has occurred or where the applicant and sponsor have legal obligations to a child.

   [9]Subclause 100.221(4A) provides an exception to the requirement that the applicant hold a Subclass 309 visa in certain circumstances where the Tribunal has remitted the decision to refuse a Subclass 100 visa for reconsideration.

   [10]Further criteria relate to the public interest criteria and passport requirements for applications made on or after 1 July 2005: cl.100.222, 100.224, 100.225, 100.226 and 100.227.

   [11]‘Sponsoring spouse’ is defined to mean the person who was specified as the applicant’s spouse or intended spouse in the application that resulted in the grant of the Subclass 309 visa or, if the Minister personally decided to grant a Subclass 309 visa, the person who was the applicant’s spouse at the time the visa was granted, and who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen: cl.100.111

   [12]The delegate refused the visa on the basis that the applicant did not satisfy c.100.221(2)(b).  The principal issue in the present case is whether the applicant is the spouse of the sponsoring spouse at the time of decision.”

6. The Tribunal also explained, in its decision record, that it had to be satisfied that there was a mutual commitment to a shared life as husband and wife and that the relationship between the parties was genuine and continuing and that the couple were living together.  It explained that, on the basis of the information before it, namely that the couple had been divorced in 2010 this was not a criteria that could be satisfied as the delegate had also found.  The Tribunal indicated that it was satisfied that the relationship between the sponsor and the applicant had broken down by 24 May 2010 when they were divorced and as a result it could not be satisfied that the applicant had satisfied the criteria in the regulations and no other relevant regulations applied.

7. On 5 December 2012 the applicant filed an application for review of the Tribunal’s decision in this court.  There were three grounds of application.  The first was:

   “The Migration Review Tribunal denied me natural justice and fairness by not granting an extension of time requested by my migration agent on 9 November 2012 and even failed to inform my agent of the extension of time until 12 November 2012.”

8. As 9 November was a Friday and 12 November a Monday and as the Tribunal had informed the agent, very early on the Monday morning about the refusal to grant an extension of time, I am of the view there has been no denial of natural justice or fairness on the part of the Tribunal.  No reasons for granting the extension of time were offered in the agent’s letter, just a request was being made.  Given that the grounds for refusal of the delegate were given on 21 January 2011 the applicant had had plenty of time to prepare for any Tribunal inquiry.  The grounds upon which the delegate had refused the application went directly to the matters referred to in the Tribunal’s letter.  The applicant had a month from the time of the Tribunal’s letter to respond and it was only on the Friday before the final date for response that his agent wrote.

9. The second ground of application was:

   “The Tribunal acted wrongly by depriving me of an interview to explain the circumstances.”

   The Tribunal was not required to invite the applicant to an interview because the applicant had not complied with the request to provide information issued under s.359C.  The applicant had been warned of the possible consequences of not responding to the invitation and, given what might well be considered as an “open and shut” case there was probably very little that the applicant could tell the Tribunal that would have caused it to differ in its views from those of the delegate.

10. The third ground of application was:

    “It was beyond my control that the comments on the information were not received by the Tribunal.”

11. This was explained to me by the applicant as a complaint against his agent Mr Diab.  He told me that Mr Diab had not passed on anything to the Tribunal.  He had charged the applicant a lot of money and did not do anything useful.  Whether or not these complaints are truthful and correct is not to the point because it is now well established negligence on the part of an agent does not invoke jurisdictional error on the part of the Tribunal; SZFDE v Minister for Immigration & Anor [2007] HCA 35; Minister for Immigration & Anor v SZLIX [2008] FCAFC 17 Tamberlin Finn and Dowsett JJ at [33].

12. It is always possible that the views I have set out above may be incorrect but even if they are I would not exercise my discretion to grant a review of this decision by the Tribunal because to my mind there would be no utility in it.  Before me today the applicant acknowledged that the document found at [CB 82] was his marriage certificate, or a copy thereof.  He acknowledged that the document found at [CB 83] was a divorce certificate or a copy thereof and he advised me that he was not, in November 2012, living with the woman to whom he had been married or, as he said, with whom he was in a fiancé relationship under Australian law.  Those matters being the case and he not putting forward any other grounds found in the regulations, upon which he might claim to be entitled to an appropriate visa, any application to the Tribunal would be bound to fail.  

13. The application is dismissed.  The applicant must pay the respondent’s costs which, because of the very short time between the first court date and the hearing, I assess in the sum of $1,500.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  11 April 2013