Amare Del Castillo v Minister for Immigration & Border Protection

[2015] FCCA 708

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMARE DEL CASTILLO v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 708

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the Migration Review Tribunal denied procedural fairness to the applicant – express consent given by applicant to Migration Review Tribunal to make decision on the papers – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5CB, 362A
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: RICARDO AMARE DEL CASTILLO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 196 of 2015

Judgment of: Judge Emmett

Hearing date: 20 March 2015

Date of Last Submission: 20 March 2015

Delivered at: Sydney

Delivered on: 20 March 2015

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Ms Sophie Given
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 196 of 2015

RICARDO AMARE DEL CASTILLO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 27 January 2015, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal dated 8 January 2015 (“the MRT”).

2. On 19 February 2015, the applicant attended a directions hearing before a Registrar of the Court.

3. The applicant confirmed that he wished to continue with his application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 16 March 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 16 March 2015.

4. The matter was listed for a hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was given to the applicant.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The applicant was unrepresented before the Court this morning.

8. The applicant confirmed to the Court this morning that, other than a request for an adjournment of today’s hearing contained in an affidavit sworn/affirmed by the applicant on 23 February 2015 and filed on 6 March 2015, he had not filed any further documents with the Court.

9. The applicant’s application for judicial review, filed on 27 January 2015, stated the ground of review as follows:

   “1. The Tribunal erred in denying procedural fairness for failure to adjourn the hearing so my legal representatives could receive my complete file from the Tribunal to be able to advise properly in the matter.”

10. The applicant was invited to make submissions in support of the ground of his application.

11. The applicant sought leave to give oral evidence in support of his application. I asked the applicant what was the nature of the oral evidence that he would give if leave was given. The applicant indicated that it was in relation to his view that he was not given sufficient time to prepare his matter for hearing before the MRT, in that he had only a month and it was over the Christmas period.

12. The MRT’s decision record outlines the relevant history of this matter. On 10 October 2013, a delegate of the first respondent (“the Delegate”) refused to grant the applicant a partner visa on the basis that the applicant was not the de facto partner as defined in s.5CB of the Migration Act 1958 (Cth) (“the Act”) and, therefore, did not satisfy the requirements of his visa. Section 5CB(2) of the Act defines de facto relationship as follows:

    “(2)  For the purposes of subsection (1), a person is in a  de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

    (a)  they have a mutual commitment to a shared life to the exclusion of all others; and

    (b)  the relationship between them is genuine and continuing; and

    (c)  they:

    (i)  live together; or

    (ii)  do not live separately and apart on a permanent basis;

    and

    (d)  they are not related by family (see subsection (4).”

13. On 31 October 2013, the applicant applied for judicial review of the Delegate’s decision. On 25 November 2014, the MRT invited the applicant to attend a hearing before it on 8 January 2015.

14. On 26 November 2014, the applicant requested that the MRT to postpone the hearing to a later date. The MRT wrote to the applicant, advising him that the MRT had considered his postponement request carefully but that it had been refused, confirming the hearing date as 8 January 2015.  The MRT also informed the applicant that he could give evidence by telephone on that date if he wished.

15. On 5 January 2015, the applicant, through his legal representatives, again sought to postpone the hearing and requested that the matter be transferred from Melbourne to Sydney. The applicant also requested the MRT file.

16. On the same day, the Migration Review Tribunal replied and the applicant was advised, through his legal representatives, that the Migration Review Tribunal had carefully considered his second postponement request but had again refused it. The hearing date of 8 January 2015 was confirmed. The letter, however, communicated that the Migration Review Tribunal had agreed to transfer the matter from the Migration Review Tribunal’s Melbourne registry to its Sydney registry, as requested. Further, in compliance with s.362A of the Act, the written material held by the Migration Review Tribunal in relation to the applicant was provided to the applicant’s legal representatives.

17. On 7 January 2015, the applicant's legal representatives wrote to the MRT, informing the MRT that they had been instructed by the applicant that he would not be attending the hearing in Sydney on 8 January 2015 and that the applicant requested that the MRT make its decision on the papers. 

18. This correspondence is reproduced in a bundle of documents, identified as Court Book filed by the solicitors for the first respondent on 2 March 2015 and marked Exhibit 1R.

19. The MRT’s decision is accurately summarised in the written submissions of the first respondent, as follows:

    “Tribunal's decision

    9. The Tribunal identified that the applicant was required to satisfy cl 801.221(2)(c) of Schedule 2 to the Regulations.  That clause required that, at the time of the Tribunal’s decision, the applicant was the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or permanent resident or an eligible New Zealand citizen who was specified in the visa application as the spouse or de facto partner of the applicant (CB 156:[8]). 

    10. The Tribunal then considered the definition of ‘De Facto partner’ as defined in s 5CB of the Act as the visa application was made on the basis that the applicant was in a de facto relationship with the sponsoring partner (CB 156:[10]).  The Tribunal also identified the matters to be taken into consideration when determining whether the applicant is in a de facto relationship (r 1.09A(3) of the Regulations) (CB 156:[11]).

    11. The Tribunal found that there was no evidence before it as to the state of the relationship between the applicant and the sponsoring partner, including no evidence regarding the matters set out in r 1.09A(3) of the Regulations and no information indicating that the applicant and sponsor still claimed to be in a de facto relationship (CB 157:[12]).

    12. Accordingly, the Tribunal found that the applicant could not satisfy the requirements of s 5CB(2) of the Act and therefore the Tribunal could not be satisfied that the applicant met the requirements of cl 801.221(2)(c) for the purposes of granting the applicant the visa (CB 157:[13]).

    13. The Tribunal further found that no claims had been made by the applicant, and there was no evidence before the Tribunal, to meet the alternate criteria in cl 801.221 (2A), (3), (4), (5) or (6) (CB 157:[14]).”

20. The applicant's complaint is with the MRT’s failure to provide him with further time before he was required to attend a hearing. As stated above, the refusal by the MRT to postpone the hearing was followed by the applicant's legal representative’s advice to the MRT that the applicant would not attend the hearing on 8 January 2015 and that the MRT should make its decision on the papers.

21. Moreover, it is clear from the documents referred to above that the MRT complied with Division 5 of Part 5 of the Act, being an exhaustive statement of the natural justice hearing rule, by inviting the applicant to attend a hearing in accordance with the statutory regime.

22. I accept the first respondent’s submission that the evidence before this Court shows that the applicant was provided more than adequate notice of the hearing date and had sufficient time from the filing of his application on 31 October 2013 to obtain any further legal advice and to undertake any further preparation. 

23. The applicant’s application for review by the Migration Review Tribunal was transferred from the Melbourne registry to the Sydney registry in early September 2014, at the request of the applicant.  It is a matter for the applicant as to when he obtains legal representation and the reasons why there may be a delay in doing so. The applicant’s reasons for these actions cannot by themselves demonstrate jurisdictional error on the part of the MRT.

24. The applicant, via the letter from his legal representatives dated 7 January 2015, communicated his express consent for the MRT to make a decision in his absence. Given this consent, there can be no miscarriage by the MRT of its discretion to make its decision without allowing the applicant further opportunity to appear before it.

25. Whilst I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record.

26. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

27. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 27 January 2015, should be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  2 April 2015