Allam v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 811
•1 August 2013
FEDERAL COURT OF AUSTRALIA
Allam v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 811
Citation: Allam v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 811 Appeal from: Allam v Minister for Immigration [2013] FMCA 246 Parties: HOUSSAM ALLAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 687 of 2013 Judge: RARES J Date of judgment: 1 August 2013 Legislation: Federal Court Rules 2011 (Cth) r 35.13(a)
Federal Magistrates Court Rules 2001 (Cth) r 10.01(2)
Migration Act 1958 (Cth) ss 359A, 360(2)(c)
Migration Regulations 1994 (Cth) reg 1.15A(1A)(b), (2)(c), Sch 2, cl 100.221Cases cited: Allam v Minister for Immigration [2013] FMCA 246 referred to
Bienstein v Bienstein (2003) 195 ALR 22 applied
Jackamarra v Krakouer (1998) 195 CLR 516 applied
Stead v State Government Insurance Office (1986) 161 CLR 141 appliedSZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 applied
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 applied
Date of hearing: 1 August 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr M Alderton of Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 687 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HOUSSAM ALLAM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
1 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for extension of time be refused.
2.The applicant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 687 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HOUSSAM ALLAM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
1 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an application for an extension of time in which to file a notice of appeal from a decision of what is now the Federal Circuit Court, rejecting the applicant’s application for constitutional writ relief in respect of a decision of the Migration Review Tribunal, refusing his application for a spousal visa: Allam v Minister for Immigration [2013] FMCA 246.
Background
The applicant seeks to raise one ground of appeal. That ground claims that negligence by his migration agent in the course of the conduct of proceedings before the Tribunal could create jurisdictional error. The applicant required an extension of time because he was two days late in filing his notice of appeal, the Easter holiday having intervened from the time his Honour gave his decision and the date for filing of an appeal.
The circumstances before the Tribunal and both his Honour and myself are uncontroversial. The applicant was married to his sponsoring spouse at the time he applied for a spousal visa on 21 August 2008. On 10 August 2010, his sponsor, being his former wife, wrote to the Department saying that she had divorced the applicant, and provided copies of both marriage and divorce certificates. The delegate decided to refuse to grant the visa on 21 January 2011. The applicant applied to the Tribunal to review that decision on 7 February 2011.
The legislative scheme
The criteria for a spousal visa required, among other things, that there was a mutual commitment to a shared life as husband and wife, to the exclusion of all others, that the relationship was genuine and continuing, and that the couple lived together or did not live separately and apart on a permanent basis: reg 1.15A(1A)(b) and (2)(c) of the Migration Regulations 1994 (Cth). The critical criterion for the grant of a spousal visa was that the applicant had to be the spouse of the sponsoring partner and, with limited exceptions that did not apply here, at least two years had passed since the application was made: cl 100.221 of Sch 2 of the Regulations.
The Tribunal’s decision
For some reason, the Tribunal took over a year and a half before it wrote to the applicant on 15 October 2012 under s 359A of the Migration Act 1958 (Cth), seeking the applicant’s comments to deal with what was said in his ex-wife’s letter to the Department of 10 August 2010. As I have indicated, shortly before the expiry of the two year period, the applicant’s wife had written to the Department stating that the relationship was at an end and she had left him. The Tribunal recorded in its reasons that its letter explained that that information was relevant to its decision because it might lead it to conclude he and his sponsor did not have a mutual commitment to shared life as husband and wife to the exclusion of all others, the relationship was not genuine and continuing, and that they did not live together, which would lead the Tribunal to affirm the decision under review.
On 9 November 2012, the applicant’s migration agent or lawyer requested an extension of time from the Tribunal so that the applicant could collate necessary evidentiary documents to support his case. The Tribunal did not grant the extension, and notified the agent of that decision on 12 November 2012.
The Tribunal made its decision to affirm the refusal to grant the visa on 23 November 2012, no further information having been provided by the applicant in the meantime.
The proceedings below
The proceedings before the Federal Magistrates Court occurred on the first court date for the matter. On the morning, shortly before the hearing, the applicant and the Minister signed extensive consent orders providing for the applicant to file and serve an amended application, giving complete particulars of his ground of review and any additional affidavit evidence, for the Minister to respond, and with further detailed directions about preparing submissions. However, his Honour appears to have decided not to proceed upon that basis at the hearing, and dealt with the matter finally, pursuant to r 10.01(2) of the Federal Magistrates Court Rules 2001 (Cth), that provides that at the first court date, that Court, “may hear and determine all or part of the proceedings”.
His Honour discussed the material within the Court book in his reasons. He rejected other grounds that are not now relied on by the applicant, for reasons that appear to me to be correct in any event.
The third ground of the application below was that it was beyond the applicant’s control that the comments on the information were not received by the Tribunal. The applicant told his Honour that his migration agent had not passed anything on to the Tribunal, had charged him a lot of money and had not done anything useful. The applicant made similar complaints to me. He submitted that he had paid both his agent and the Tribunal substantial fees for the progressing of the review. His Honour said that whether those complaints were truthful and correct was not to the point, because negligence on the part of an agent was not sufficient to establish a jurisdictional error by the Tribunal: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at 207 [52].
His Honour then said that it was possible that his conclusions on the grounds of the application were not correct, but that in any event he would not exercise his discretion to set aside the decision of the Tribunal, because it would be futile. The applicant had confirmed to his Honour and also told me that his wife had left him by the time that her letter dated 10 August 2010 was written, and she was not in a continuing relationship with him at that time, or at the time when the Tribunal made its decision. Therefore, his Honour held that there was no basis on which the applicant could have succeeded in obtaining a grant of the visa as a result of the factually correct statements by his former wife in the letter of 10 August 2010, and that she had ceased to live with or be in a spousal relationship within the meaning of the regulations at that time. Accordingly, his Honour dismissed the application.
Consideration
Where an application for an extension of time in which to file an appeal is made, the Court must first consider whether there is some explanation for the failure in which to file the application within the time prescribed by r 35.13(a) of the Federal Court Rules 2011 (Cth). It is not necessary for me to pause to consider whether the two day delay by the applicant in his seeking to file a notice of appeal has been satisfactorily explained. That is because it is critical in such an application for the Court to consider is whether, in outline, the applicant’s case appears to have any merit. If it appears strong on its merits, and it ought to be heard in fairness to the parties, the Court can grant the extension of time and leave to appeal, but where the case appears to be flimsy and weak on the merits, the Court may not decide to extend the time, depending on the circumstances: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540-541 [66.4] per Kirby J. In addition, an application for leave to appeal must demonstrate that the decision in question is attended with sufficient doubt to warrant the grant of leave, and that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
In this matter, the applicant feels a sense of grievance because he has not been able to explain to the Tribunal or the Court below the circumstances in which his relationship with his spouse ceased. However, the objective, and undisputed fact, is that that relationship had well and truly ceased before two years had expired at the time of the letter written by his ex-wife on 10 August 2010. The Tribunal had jurisdiction to decide the review pursuant to s 360(2)(c), without inviting the applicant to appear before it, after he failed to comply to provide the information requested in the letter sent under s 359A of the Act within time.
In those circumstances, there is no possibility that the applicant could demonstrate that he could satisfy the requirements for a grant of a spousal visa by the Tribunal. Even if he were able to raise, which I do not consider that he has, an arguable claim that the Tribunal’s jurisdiction was not exercised in the manner intended by the Parliament so as to give rise to a jurisdictional error because of some fault on the migration agent’s part, it would be futile to grant relief: Stead v State Government Insurance Office (1986) 161 CLR 141 at 145, 147 per Mason, Wilson, Brennan, Deane and Dawson JJ. The Tribunal’s decision was plainly the only decision to which it could come on the undisputed facts. No useful result could ensure from a grant of any relief to the applicant in those circumstances: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 618-619 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Conclusion
Accordingly, it must follow that no useful purpose could be served by the grant of an extension of time for the filing of the appeal, because the appeal must inevitably fail. I order that the application for an extension of time be refused with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 August 2013
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