Alzaben v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 270
•17 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Alzaben v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 270
File number(s): BRG 1102 of 2019 Judgment of: JUDGE EGAN Date of judgment: 17 February 2021 Catchwords: MIGRATION – application for Partner Visa – finding by Tribunal that relevant criteria required to establish that a genuine spousal relationship existed had not been met – no jurisdictional error on the part of the Tribunal – failure by applicant to twice comply with orders of the Court requiring the particularisation of the grounds for review – default by applicant warranting dismissal of application – application for review dismissed. Legislation: Migration Act 1958 (Cth), s 5F.
Migration Regulations 1994 (Cth), r 1.15A, Sch 2, cll 820.211(2)(a), 820.221
Federal Circuit Court Rules 2001 (Cth), r 13.03B(1)(c),
Cases cited: FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 159.
Abela v Minister for Home Affairs [2021] FCA 96.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Number of paragraphs: 23 Date of last submission/s: 3 February 2021 Date of hearing: 3 February 2021 Place: Brisbane Applicant: The Applicant appeared in person on his own behalf Counsel for the First Respondent: Mr Byrnes
Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG1102/2019 BETWEEN: OSAMA MOHAMMAD ASSAD ALZABEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 FEBRUARY 2021
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 6 August 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The Applicant is a citizen of Jordan who arrived in Australia on 20 December 2011 on a Student Visa. That Student Visa was cancelled on 12 October 2015.
On 31 August 2015 the Applicant applied for a Partner (Temporary) (Class UK) Visa allegedly based upon his relationship with his sponsor.
On 1 December 2017, a delegate of the Minister refused to grant the visa on the basis that the delegate, having had regard to r.1.15A of the Migration Regulations 1994 (Cth) (‘the Regulations’), was not satisfied that the Applicant was the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (Cth) (‘the Act’). Regulation 1.15A of the Regulations and s.5F of the Act respectively provide as follows:
“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).”
“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 a married couple 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.”
On 12 December 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. The Applicant appeared before the Tribunal on 24 October 2019, at which time he was able to make submissions on his own behalf with the assistance of a migration agent.
On 3 December 2019, the Tribunal affirmed the decision of the delegate not to grant the visa.
On 23 December 2019, the Applicant filed an Originating Application for Review of the decision of the Tribunal. The Ground of Review was as follows:
“1. The decision made is so unreasonable that no reasonable decision-maker would have made.”
Grounds for Review
On 13 February 2020, Registrar Carlton made an order which was not complied with by the applicant. The order provided as follows:
“2. By 4:00pm on 16 April 2020 the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.”
On 5 June 2020, Order number 2 was made by this Court but was not complied with by the applicant. At the time of the making of such order, the Court, by Order number 6, put the applicant on notice that if he failed to comply with the Court Order requiring the filing of an Amended Application for Review which included detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the final hearing of the matter, the application for review was liable to be dismissed pursuant to the provisions of r. 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth). Such orders respectively provided as follows:
“2. The Applicant is to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review, by 4:00pm on 30 June 2020.
…
6. In the event that the Applicant has failed to comply with Order 2 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Court directs, pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar has such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), and thereupon make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Federal Circuit Court Rules 2001 (Cth). ”
On 16 July 2020, for reasons not known to this Court, Registrar Carlton made an order which again required the filing and service of an amended application for review which included detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the final hearing of the matter. Orders 2 and 4 made by the Registrar that day were not complied with by the applicant. The orders respectively provided as follows:
“2. The applicant be afforded a further opportunity to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review, by 4:00pm on 6 August 2020.
…
4. The first respondent shall file and serve any affidavit evidence and written submissions upon which the first respondent proposes to rely relevant to the grounds of review by 4:00pm on 20 August 2020.”
The applicant did file an application on 6 August 2020 which purported to be an amended application, but such amended application was largely a historical narration of events from the applicant’s perspective, or otherwise was seeking an impermissible merits review of the decision of the Tribunal. The grounds of the Amended Application for Review were as follows:
“1. There has never been a serious deep investigations into the relationship, all previous decisions was based on assumption and other people’s letters neither MRT nore immigration visited us at our address where we resid to determine the extent of relationship
2. We have been and still living together as husband and wife and doing everything a husband and wife would normally do and we are both intending to continue our relationship together. Immigration used some ups and downs in our relationship and our poor knowledge of Immigration law to reach unfair decision as it was easier. MRT has also been unfair as they based their decisions on Immigrations decisions instead of having an independent review.
3. They are forcing us to move overseas during this pandemic due to their lack of judgment which will put a further financial burden that we have to deal with family, we will also through the complicated process of issuing a visa for my wife if a decision is made against our favor.
4. Immigration and MRT ignored all of our references, letters of support photos along with other evidence that clearly understanding of the emotional impact that this has caused.”
In FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 159, this Court dealt with an amended application for review of a decision of the Administrative Appeals Tribunal where there were similarly un-particularised grounds for review, and further, where the applicants had twice been ordered to file an amended application for review which contained detailed particulars of the ground or grounds for review sought to be relied upon by them at the final hearing of the matter. At [35] – [45] inclusive of its reasons, this Court said as follows:
“[35] The applicants did not comply with the order of the Court made on 2 November 2020. The applicants had been put on notice at the hearing on 2 November 2020 that if they failed to comply with such requirement their claims might be dismissed pursuant to the provisions of rule 13.03B(1)(c) of the FCC Rules.
[36] The ground of review as set out in the Amended Application for Review filed on 20 January 2021 was an un-particularised assertion that the applicants could not return to Iran because “we will be at serious harm and risk, in particular my husband who got medical condition due to being mentally under pressure. …”. As earlier found, there was no medical evidence before the Tribunal probative of any such claim.
[37] In Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92, judgment was handed down by this Court where the grounds of review in the applicant’s claim were in part un-particularised. The Court, at [17] – [21] inclusive of its judgment, found as follows:
“[17] Ground 1 of the application for review is an un-particularised claim that the Tribunal treated the applicant unfairly. It has been held that an un-particularised ground of appeal to the Federal Court of Australia is itself a sufficient basis for dismissing that ground of appeal. In the recent decision of Farrell J in SZRKF v Minister for Immigration [2020] FCA 1389 at [22] it was said:
[22] The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).”
[18] In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22], Gilmour J said as follows:
[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.
[21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]:
(This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
[22] The first ground therefore fails.
[19] In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26], Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and un-particularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26] Those remarks are equally applicable in this case. In this case, the appellant has not identified appealable error by the FCCA Judge, nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
[20] Further, this Court has referred to the difficulties associated with the carrying out of its judicial functions in circumstances where grounds in a filed application for review of a decision of the Administrative Appeals Tribunal or the Immigration Assessment Authority were wholly un-particularised. In DUN16 and DUO16 v Minister for Immigration & Anor [2019] FCCA 2591 at [4] – [9] it was said:
[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a) erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b) failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c) not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a) advising the applicant as to the inadequacy of the particulars of their grounds for review;
b) asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d) evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e) recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson, Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
[21] This Court sees no relevant distinction between a Federal Circuit Court being unable to properly exercise jurisdiction under s. 476 of the Act when dealing with an un-particularised ground of review, and a Federal Court sitting on appeal finding that an un-particularised ground of appeal is a sufficient basis for dismissing that ground of appeal. This Court dismisses Ground 1 on that basis.”
(Footnotes omitted)
[38] The Court finds that the grounds of review as set out in both the Originating Application for Review and the Amended Application for Review were so lacking in particularity as to warrant dismissal of the applicants’ claims. It is unfair to expect the first respondent to meaningfully engage with the applicants’ claims when they are so wide and un-particularised.
[39] The Court, likewise, is at the same disadvantage. The applicants had twice been ordered to file an amended application for review which contained detailed particulars of the ground or grounds on which it was asserted that the Tribunal had erred. Having failed to do so, the only way for a possible resolution of such default would have been for the Court to order that the applicants again file and serve a properly particularised Further Amended Application for Review. That would necessarily have required the further adjournment of the hearing before this Court. This Court is not prepared to further adjourn the hearing.
[40] When discussing whether a court ought to exercise its discretion to adjourn a matter or not, Logan J in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [10] – [12] inclusive, said as follows:
“[10] Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.”
[41] In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, Collier, Griffiths and Mortimer JJ, when considering the circumstances in which an adjournment ought to be granted, said at [42] – [47] inclusive, as follows:
“[42] In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.
[43] These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.
[44] In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
[45] In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
[46] The plurality in Aon expressed a similar opinion at [93]:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
[47] Whether examined on the basis of factors particular to the parties in these appeals, or the basis referred to at [43]-[46] above, we do not consider an adjournment should be granted to Ms Luck.”
[42] The Federal Circuit Court currently has a backlog of almost 14,000 migration review applications awaiting hearing. The Court’s Judges are working hard to attempt to reduce that backlog. As a matter of public policy, Courts overwhelmed with workloads when exercising a particular jurisdiction ought not to continually avail to applicants the opportunity to properly particularise their claims in circumstances where, if a Court was to so order, it would only further exacerbate Court backlogs by denying other applicants the opportunity of having their applications for review expeditiously heard and determined.
[43] In the present matter, the sensational claims made by the applicants in each version of their review applications have not been the subject of any successful investigative outcome. The claims made to this Court lacked an evidentiary basis which alone justified dismissal of such claims.
[44] The Court finds that the applicants have twice failed to comply with orders of the Court requiring them to properly particularise their claims. They were in default as provided for in rule 13.03A(1)(a) of the FCC Rules.
[45] In the exercise of its discretion, and for the reasons set out above, the Court also considers that this is an appropriate matter where the applicants’ claims ought to be dismissed pursuant to the provisions of rule 13.03B(1)(a) and r. 13.03B(1)(c) of the FCC Rules. Such Rules provided as follows:
“Rule 13.03B – Orders on default
(1) If an applicant is in default, the Court may order that:
a. the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
…
c. if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.””
This Court finds that the applicant had, without reasonable excuse, failed to comply with orders of the Court in circumstances where such failure, on public policy grounds, should not be rewarded by the Court granting a further adjournment for the purpose of the applicant providing particulars of grounds of review sufficient to enable both the first respondent and the court to appropriately address any claims as made by the applicant. [1]
[1] See also Abela v Minister for Home Affairs [2021] FCA 96 at [17]-[22] inclusive.
In the exercise of its discretion, and for the same reasons as found by this Court in FGG19, the Court dismisses the Amended Application for Review filed by the Applicant.
The Court further finds that the grounds for review seek an impermissible merits review when read both individually and as a whole.
On the question of asserted unreasonableness on the part of the Tribunal in arriving at the decision which it did, the Court notes that such claim was not pressed at the hearing before it, either orally or in the amended application for review. The Court finds that any such claim would have been without merit in any event. The Tribunal appropriately considered all of the material before it before arriving at its decision. It set out the relevant background to the applicant having met the sponsor, and thereafter, the Tribunal appropriately considered whether the parties were in a genuine spousal or de facto relationship; whether the parties were validly married; whether the financial relationship between the parties was indicative of a genuine relationship; whether aspects of the household living circumstances of the applicant and the sponsor justified a finding that the relationship was genuine; whether the social aspects of the contact between the applicant and the sponsor were indicative of a close and genuine spousal relationship; whether the applicant and the sponsor were committed to each other; and whether there were any other circumstances which tended to support the proposition that a genuine relationship existed between them.
The Tribunal analysed such evidence at [13] – [57] inclusive of its reasons as follows:
“CONSIDERATIONS OF CLAIMS AND EVIDENCE
[13] The issue in the present case is whether the applicant was in a genuine relationship with the sponsor at the time of application and this decision.
Whether the parties are in a spouse or de facto relationship
[14] Clauses 820.211 (2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
[15] 'Spouse' is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
[16] If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Evidence was provided in the form of a New South Wales Marriage Certificate that the parties married in Lakemba on 22 May 2015. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
[17] The parties confirmed at hearing that they do not have, and never have had, joint ownership of any significant assets such as property or a car; or joint liabilities beyond the tenancy lease shared with the applicant's brother; or legal obligations owed to the other party beyond those arising from the fact of being in a legal marriage. The Tribunal asked the applicant about plans expressed at the time of application to buy a house together. The applicant acknowledged that the parties had made no progress in implementing this plan, but claimed that purchasing a house together remained a goal for the future.
[18] Evidence was provided that the parties opened a joint bank account on 25 August 2016, approximately one year after lodging the visa application. A copy of a letter titled 'Instruction to Payroll Officer' from the sponsor, dated 16 June 2015 was also provided, directing that her salary be deposited into a joint account. When asked to explain this letter at hearing the sponsor stated that she had no memory of it. She stated that she has never had a payroll officer or a salary. She stated that the letter would have been provided on the advice of the parties' previous migration agent for the purpose of the visa application. She confirmed that her Centrelink benefits have always been deposited into her own personal bank account.
[19] The applicant stated that he worked with his brother, doing small furniture removal jobs and sub-contracting for larger removalists. He advised that he worked part-time while on a Student (Subclass 572) visa; that he lost his work rights following the cancellation of his Student visa; but was granted full-time work rights in 2017 on the grounds that he needed to support his wife, the sponsor, who has an intellectual impairment and needs assistance with everyday living. The applicant advised at hearing that the sponsor's income from Centrelink is AUD 700 a week and his income is around AUD 500 a week. He stated that he has only been able to work part-time because he has needed to care for the sponsor.
[20] In response to further questioning regarding his work and income, the applicant stated that he was helping the sponsor to learn to drive so she would be independently mobile, and that with her eldest daughter, aged 15, now living with them, and her son, aged 13, soon to live with them and able to help the sponsor, he intended to earn more income to support the household. The sponsor confirmed that she has a learner driver permit and hopes to obtain a driver's licence. She then stated, however, that she can't drive the applicant's car because it is a manual, and she is learning to drive cars with automatic gear transmissions. The applicant confirmed that his car, which he purchased in 2018, is registered in his name only. When asked how he could afford to buy a car if, as he claimed, he had only around AUD 60 in his personal bank account, no savings account or savings in the joint account, and had only worked part-time, he stated that he bought the car from a friend who accepted payments in cash, over time.
[21] The claims made by the applicant regarding his income, assets and financial situation were opaque and unconvincing.
[22] A copy of a tenancy ledger from Ray White in Sunnybank Hills, for the period 1 0 May 2019 to 14 October 2019, was provided, indicating that AUD 400 a week over this period was received from the applicant's brother, the applicant and the sponsor as joint tenants. A statement of transactions from the parties' joint bank account for the period 1 January 2019 to 14 October 2019 shows irregular transfers of AUD 350 or AUD 360 to another bank account, under the title 'rent'. A statement of transactions from 1 July 2019 to 22 October 2019, received by the Tribunal on 11 November 2019, also shows irregular transfers of irregular amounts into another bank account, under the title 'rent'.
[23] The Tribunal found the parties vague, evasive and confusing on the issue of how the rent for their shared house has been paid. The sponsor stated that she paid the rent from her own personal account, and that money was transferred from the joint account into her personal account. The applicant's brother then stated that he paid the rent from his business account. He subsequently stated that he paid the rent 'most of the time'. The applicant stated that he paid for the shopping. He stated that he was paid on an irregular basis, depending on his hours of work, from his brother's business account, and that he used cash.
[24] The statements do not show that the parties' incomes are deposited into the joint account. They do not show that rent is paid to a landlord or rental agency, or that utilities are paid from the joint account. They show many Apple iTunes purchases but only occasional food or supermarket purchases. They do not show any significant joint household expenditure. At hearing the parties acknowledged that in a claimed live-in relationship of over four years, they have made no significant joint purchases such as of new furniture or whitegoods through their joint bank account. The sponsor stated that she obtained a second-hand bed through Facebook. The applicant stated that he obtained furniture from his furniture removal work - that customers often gifted items they no longer wanted.
[25] The Tribunal put to the applicant that the statements of transactions from the joint bank account provided to the Tribunal comprised mostly transfers into and out of other bank accounts: they do not show that the parties have pooled their resources to establish and manage a joint household, and they do not show that the parties have shared day-to-day expenses. The applicant acknowledged that the joint account was opened on the advice of his first agent for the purpose of the visa application and that funds were transferred in and out of the account in order to demonstrate it was active, following the Delegate's finding that it was not used.
[26] In a jointly signed written statement signed on 7 November 2019 and received by the Tribunal on 11 November 2019, the applicant claimed '[the sponsor] and I share the bills equally for food and household expenses'. Statements of transactions from 2017 to 2019 from the sponsor's bank account were attached. These statements show that the sponsor's personal account was used for some supermarket shopping. They show that many more transactions comprised the transfer of funds into and out of her bank account and other bank accounts, the details of which were not provided.
[27] The Tribunal is not satisfied on the evidence provided that the parties have pooled their resources or shared day-to-day expenses commensurate with being in a genuine married relationship.
Nature of the household
[28] As noted, copies of joint rental agreements in the names of the applicant's brother, the applicant and the sponsor were provided, along with a rental receipt ledger. As noted above, the Tribunal found it difficult to determine how and who paid the rent.
[29] Copies of several items of mail were provided addressed to the parties at the same address.
[30] At hearing the sponsor confirmed that she met the applicant when he was moving furniture for her foster mother, and that following a second meeting, at a time when she was looking for somewhere to stay as she wanted to move out of her foster-mother's house, she moved into the house rented by the applicant and his brother. The parties confirmed at hearing that the household has always comprised the applicant's brother, the applicant and the sponsor.
[31] The Tribunal accepts that the sponsor has lived with the brothers since moving out of her foster mother's house in 2015. At the hearing the parties advised that the sponsor's oldest daughter, who is 15 at the time of decision, had lived with them for around a month, and that the sponsor's son who is 13 would be joining the household in the next week. The sponsor confirmed that the children's father has custody of the children. The sponsor's daughter stated that she was not happy living with her father and that her father did not like her spending time with her mother in Brisbane because he did not approve of the applicant. The sponsor advised that she is in the process of enrolling the children in Brisbane schools and they would stay as long as they wanted to, and their father allowed. Following the hearing, on 11 November 2019, the Tribunal received a copy of a 'Parenting Plan' signed on 27 July 2016 for the sponsor's daughter who was born in 2012. This directs that 'the Child' spends time with her birth mother, specifically the first week of each Term 2 Queensland Gazetted school holiday period, and one week of the Christmas/Summer school holiday period.
[32] At the hearing the sponsor, the applicant and his brother seemed comfortable in each other's company. In written statements the parties described how the applicant helps the sponsor with the housework and the cooking. As noted, the applicant claimed he did the food shopping for the household. The sponsor claimed at hearing that she also shopped for the household.
[33] Following the hearing, on 11 November 2019, the Tribunal received a written statement from the sponsor stating that her daughter left her father's house. to spend two weeks with her and the applicant, and told her within a couple of days of her arrival that she wanted to stay and live with them. A statement was attached from the sponsor's daughter, who states that she 'started year 7 at Wagga Wagga high school'; that she visited her mother and decided to stay because 'mum and stepdad treats [sic] me better then [sic] my actual dad has'; and that she is 'extremely happy' living with her biological mother and the applicant.
[34] The Tribunal accepts on the evidence provided that the sponsor has lived in the same house as the applicant and his brother since 2015 and that all of the occupants would have shared meals and housework. The Tribunal however is not satisfied on the evidence provided that the parties have established a joint household as a married couple. The Tribunal accepts that the applicant would have shared responsibility for the care and support of the sponsor's daughter during visits, and around the time of the hearing, but considers this care and support to have been in the context of a housemate and contrived relationship, rather than a genuine spousal relationship.
[35] No evidence was provided that the sponsor has formal custody of any of her children, and at hearing she confirmed that she does not have custody of any of her children.
Social aspects of the relationship
[36] Four statutory declarations were provided to the Tribunal by friends of the applicant who stated that they knew the applicant and the sponsor to be living together under the same roof; that they have visited the parties at their house and observed them to be a couple; and that they attended the parties' wedding.
[37] A statutory declaration was provided by the sponsor's grandmother, declaring that she has maintained contact with the sponsor by phone and visits, and observed that the sponsor is happy and 'changed' since she married the applicant. Statutory declarations were provided by the step-father and the uncle of the sponsor, declaring that they know the parties to be married; that they have visited the sponsor; that they know the parties have 'taken on' the sponsor's teenage children; and that they support them in this.
[38] Photos, including printouts from internet social pages, were provided of the parties, mostly just together at home, but also eating out, and with family members of the sponsor. In statutory declarations signed in October 2017, the parties both stated that they visit friends together, and that they go to restaurants and cafes on the Gold Coast.
[39] At hearing the sponsor stated that she is unable to fly because she suffers from Deep Vein Thrombosis. She stated that the applicant has driven her to Sydney to visit her two older children who lived there with their father. Printouts from an internet social site were provided, showing the applicant's mother in Jordan communicating with the applicant and the sponsor. Photos were provided of the parties' wedding and reception.
[40] The Tribunal accepts that the parties have represented themselves as being married to each other, and that several of the sponsor's family members have expressed support for the visa application. The Tribunal accepts that the parties have travelled to Sydney by car and visited family members of the sponsor together.
Nature of persons' commitment to each other
[41] The parties claim they entered into a committed relationship on 28 April 2015 when the applicant proposed to the sponsor.
[42] In similarly worded statutory declarations signed in October 2017 the parties declared that they support each other emotionally and psychologically. Printouts were provided of mobile phone call logs showing the parties called each other's numbers. As noted, photos, mostly selfies, were provided of the parties together at home and out together. Evidence was provided that the parties have attended the cinema together.
[43] The Tribunal has considered the applicant's statement that he obtained work rights in 2017 on the grounds that he needed to support his wife, the sponsor, who has an intellectual impairment and needs assistance with everyday living. The Tribunal notes that the applicant advised at hearing that the sponsor's income from Centrelink is AUD 700 a week and his income is around AUD 500 a week, and that the sponsor claimed that he has only been able to work part-time because he has needed to care for the sponsor. The Tribunal accepts that the sponsor may have benefitted financially by moving into the house of the applicant and his brother, and that the applicant and his brother may have provided support for the sponsor in her day-to-day living and arrangements with her children. The Tribunal does not accept that this shows the applicant and the sponsor to be in a genuine spousal relationship.
[44] At hearing, as noted, the applicant, the applicant's brother and the sponsor appeared companionable and supportive of each other. The Tribunal accepts that the applicant and the sponsor have lived in the same house, with the applicant's brother, for five years and that during this time the members of the household would have provided companionship and emotional support to each other. The Tribunal notes that the applicant acknowledged that the parties have made no progress towards their claimed goal at the time of application of purchasing a house together, and that the parties have not described any other plans or goals for their future as a couple. The Tribunal is not satisfied that the parties see the relationship as long-term.
Any other circumstances of the relationship
[45] As noted, following the procedures of s.359AA, the Tribunal provided information to the applicant regarding dob-ins in August and September 2016. The dob-in in August 2016 was not anonymous; it was from a person familiar with the parties and their circumstances. It alleged that the applicant entered into a contrived marriage with a vulnerable sponsor. It included details that the sponsor had received a cash payment and promises of further financial support as well as somewhere to live; that the applicant assisted people to migrate to Australia on false pretences; that the going rate for marrying someone from Jordan was AUD 30,000, half to be paid up front and the rest on after the visa was finalised; and that the applicant was involved in attempts to convince single women, including through the sponsor, to accept money in exchange for marriage.
[46] The dob-in advised that the sponsor suffered from a multitude of mental issues; was incapable of handling day-to-day decisions in her own life; and that while it was possible that the parties' relationship might have developed into 'something more', it was at the outset one of convenience where the sponsor obtained a home, room and board as well as certain luxuries in exchange for marriage.
[47] The second allegation made in September 2016 was that the applicant was possibly facilitating contrived relationships, for migration purposes, for friends in Jordan.
[48] The Tribunal gives weight to these dob-ins, given the circumstances of the relationship and because the first dob-in is lengthy, detailed, and from a person who knows the parties and appears motivated by concern for the sponsor's well-being.
[49] In her written submission dated 7 November 2019, received by the Tribunal on 11 November 2019, the parties' representative submitted that it was the belief of the parties that the allegations were made by the sponsor's foster mother and her son, for the purpose of vindictively sabotaging 'the applicant's immigration status', so the sponsor 'could not continue to seek options in accessing custody' of her youngest daughter. The Tribunal gives no weight to this response, for the reason that the dob-ins did not come from the sources claimed by the parties.
[50] The Tribunal notes that the applicant's brother, with whom the applicant has lived since arriving in Australia, similarly entered Australia on a Student visa, and subsequently obtained a Partner visa on the basis of a marriage which he acknowledged at hearing lasted only 'three or four' years.
[51] The Tribunal acknowledges that the parties may have developed a relationship of accommodation and support for each other, after marrying and living in the same house, with the applicant's brother, for five years. Having considered the r.1.15A matters and the dob-in information, the Tribunal is not satisfied however that the parties are in a genuine long-term relationship that they are both committed to beyond the grant of a permanent resident visa. The Tribunal is not satisfied that at the time of decision they are in a genuine spousal relationship.
[52] The Tribunal has considered the parties' circumstances and the evidence, including the submission, statements and further documents received after the hearing.
[53] The Tribunal finds, against s.5F(2)(b) and (c), that the parties do not have a mutual commitment to shared life to the exclusion of others, and that they are not in a genuine and continuing relationship.
[54] On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or the time of this decision.
[55] Therefore the applicant does not meet cl.820.211 (2)(a) or cl.820.221.
[56] No claim was made and there is no information or evidence before the Tribunal to indicate that the applicant meets the alternative criteria in cl.820.211 (7), 820.211 (8), 820.211 (9), 820.221 (2), 820.221 (3) (death, family violence, child exceptions).
[57] For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.”
Having done so, the Tribunal was not satisfied that the requirements of s. 5F(2) of the Act had been met. The Tribunal found that the applicant did not meet the relevant criteria as set out in cl. 820.211(2)(a) or cl. 820.221 of Schedule 2 to the Regulations, which criteria respectively provided as follows:
“820.211
(2) An applicant meets the requirement of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner.
…
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.”
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that 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. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 17 February 2021
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