Azzi v Minister for Immigration

[2016] FCCA 167

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZZI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 167

MIGRATION – Review of decision by Administrative Appeals Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.5F, 417, 477
Migration Regulations 1994 (Cth), regs.1.15A, 1.24, Schedule 2 – cl.100.221

Cases Cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34 Singh v Minister for Immigration and Citizenship [2013] FCA 813 SNSYE v Minister for immigration and Citizenship [2010] FCA 500 Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

JOSEPH AZZI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2453 of 2015

Judgment of: Judge Emmett

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

The applicant appeared in person with the assistance of an Arabic interpreter.

Solicitor for the Respondents: Ms Chloe Hillary
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2453 of 2015

JOSEPH AZZI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review was filed some six months after the decision of the Migration Review Tribunal (“the MRT”) dated 10 February 2015.

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   ‘date of the migration decision’ means:

   (a)  in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975-the date of the written decision under that subsection; or

   (b)  in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the written statement under subsection 368(1) or 430(1); or

   (c)  in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or

   (d)  in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

3. Pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.

4. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay; the presence or absence of prejudice to the respondent; and the merits of the proposed appeal (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J; and SNSYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).

5. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] per Lindgren J; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] per Lee, Nicholson and Finkelstein JJ).

6. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] per Finn J; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22] per Cowdroy J; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19] per McKerracher J).

7. In the applicant’s application, filed 7 September 2015, the applicant identified the grounds of his application for an extension of time as follows:

   “1. The Tribunal refused my application on 9 February 2015. I wrote to the Honourable Minister on 25 February 2015. I attach copy of my correspondence as well as copy of a letter received from the Office of the Minister dated 5 March 2015 that the Minister acknowledged receiving my request for intervention.

   2. The Maronite Bishop of Australia, Antoine-Charbel Tarabay, supported my application to the Minister in letters dated 13 February 2015 and 2 June 2015. I did not expect the Honourable Minister not to intervene in my case.

   3. I submit a letter dated 20 August 2015 ~ signed by Ministerial Intervention to say that the Assistant Minister for Immigration has not exercised her power in my case.

   4. The Minister failed to reply to my letter and failed to reply to His Grace Bishop Tarabay.

   5. I am now asked to provide a valid airline ticket to depart Australia and for that reason I wish to lodge a judicial review and hope that the extension of time request will be granted.”

8. The applicant was unrepresented this morning, although had the assistance of an Arabic interpreter.  His application for an extension of time was opposed by the first respondent. 

9. I explained to the applicant that of particular relevance to the Court would be the explanation for his delay in seeking judicial review and the prospects of success of his application for judicial review of the MRT’s decision.

10. I invited the applicant to say anything he wished in support of his application for an extension of time this morning.

11. The applicant stated that he would like to seek advice from a solicitor.

12. I explained to the applicant that that he has had time since the directions hearing, on 15 October 2015, to seek legal advice. The applicant confirmed to the Court this morning that he was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language at the directions hearing. When I stated that it did not appear that he had taken any steps to seek legal advice, the applicant responded that he was seeking to appoint a lawyer. However, the applicant told the Court that he did not presently have an appointment with a lawyer; nor did he have the name of a lawyer from whom he wished to seek advice.

13. To the extent that the applicant appeared to be making an application for an adjournment, this was opposed by the first respondent. 

14. In circumstances where the applicant has been aware of the MRT’s adverse decision since 10 February 2015; was provided with the contact details of legal services providers at the directions hearing on 15 October 2015; and, does not yet have an appointment with, or the name of, any solicitor, the applicant’s application for an adjournment in order to seek legal advice was refused. 

15. The applicant confirmed that the explanation for the delay in commencing the present proceeding is set out in his application filed on 7 September 2015. The applicant also stated that he sought ministerial intervention in respect of the MRT’s decision, but was unsuccessful in that application. 

16. It is well established that an applicant’s conduct in seeking ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the MRT on grounds that would otherwise have been available under the Act, and that it does not satisfactorily explain a delay in commencing a judicial review proceeding (see M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).

17. In the circumstances, the applicant’s explanation for his delay in commencing the proceeding before this Court is unsatisfactory.

18. The first respondent, in written submissions filed on 28 January 2016, accurately summarised the background of the applicants’ claims, the applicable law and the MRT’s decision, as follows:

    “Background

    1. The applicant is a male citizen of Lebanon. The applicant lodged an application for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa on 23 April 2010 on the grounds of being in a spousal relationship with Australian citizen [name omitted].

    2. The applicant was granted a subclass 309 Partner (Provisional) visa on 7 March 2011 and entered Australia on that visa on 11 March 2011. This was a temporary visa. The application for a Partner (Migrant) (Class BC) visa remained on foot.  The relevant subclass of visa is subclass 100.

    3. By letter dated 5 January 2012, received by the Department on 9 January 2012, Ms [name omitted] advised that the parties' relationship had ceased. The applicant was sent a number of letters inviting his response to the breakdown of the relationship, to which no response was received. 

    4. The application for a subclass 100 Partner visa was refused by a delegate of the first respondent on 2 July 2012. The delegate was not satisfied that the applicant continued to be the spouse of [name omitted].

    5. The applicant applied to the MRT for review of the delegate's decision on 26 November 2013.

    6. On 6 January 2015 the applicant submitted to the MRT a form 1040, being a statutory declaration relating to family violence, completed by [name omitted], with some supporting material, including two medical certificates. The applicant appeared before the MRT on 8 January 2015 to give evidence and present arguments. Relevantly, the applicant gave evidence as to the breakdown of the relationship, and claimed to have been the victim of family violence, in the form of the sponsor yelling at him and using bad language.

    7. The MRT made its decision on 9 February 2015, affirming the decision under review.

    Applicable law

    9. There are a number of bases upon which an applicant who has already been granted a subclass 309 visa can then satisfy the criteria for grant of a subclass 100 visa.

    10. Pursuant to clauses 100.221(2) and (2A) of schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) an applicant satisfies the criteria for grant of the visa if two years have passed since the grant of the subclass 309 visa and the decision maker is satisfied that the applicant remains the spouse of the sponsoring partner.

    11. 'Spouse' is defined in section 5F of the Migration Act 1958 (Cth) (the Act) as follows:

    Spouse

    (1) For the purposes of this Act, a person is the spouse of another person 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 husband and wife 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.

    12. Regulation 1.15A(3) sets out those matters which are to be considered pursuant to section 5F(3) of the Act, as follows:

    (3) …

    (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.

    13. In circumstances where the applicant is no longer the spouse of the sponsoring partner, an applicant can seek to satisfy the requirements of subclauses 100.221(3) or (4). Clause 100.221(3) applies where the sponsoring partner has died. This did not apply in the present case. Clause 100.221(4) applies where the relationship between the applicant and the sponsoring partner has ceased and either:

    13.1 There is a child over whom both parties' have some custody or access rights, or maintenance obligations. This did not apply in the present case.

    13.2 The applicant or a member of their family unit has suffered family violence committed by the sponsoring partner.

    14. The relevant provision in the present case is that relating to family violence, which provides as follows:

    (4) The applicant meets the requirements of this subclause if:

    (a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and

    (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

    (c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a)--either or both of the following circumstances applies:

    (i) either or both of the following:

    (A) the applicant;

    (B) a member of the family unit of the sponsoring partner or of the applicant or of both of them;

    has suffered family violence committed by the sponsoring partner.

    15. The effect of subclause 100.221(4)(b) is that the decision maker needs to be satisfied that had the relationship between the applicant and the sponsor not ceased, the decision maker would have been satisfied that the applicant was the spouse of the sponsoring partner.

    16. It is to be noted that regulations 1.21 to 1.27 set out the way in which claims of family violence are to be advanced by an applicant and assessed by the decision maker.

    The decision of the Tribunal

    17. The MRT identified the issue to be whether the applicant was the spouse of [name omitted] as defined by section 5F of the Act, at [7].

    18. On the evidence the MRT found that the parties were married to each other under a marriage that was valid for the purposes of the Act as required by section 5F(2)(a), at [17].

    19. In considering whether the other requirements for a spousal relationship were met, the MRT had regard to the factors set out in regulation 1.15A and made the following findings:

    19.1 The financial aspects of the relationship: The MRT was not provided with evidence of joint ownership of assets or joint liabilities or pooling of financial resources or any legal obligations owed to the other party. The MRT was not provided with evidence of any sharing of day-to-day expenses, at [21].

    19.2 The nature of the household: The MRT found that on the evidence the parties lived within a familial environment and Ms [name omitted]'s parents were responsible for the household. The MRT found that there was limited evidence of the parties' living arrangements or that the parties shared household duties, at [22].

    19.3 The social aspects of the relationship: The MRT accepted that initially the parties represented themselves to other people as being married to each other. However it found there was limited evidence provided from friends and acquaintances about the nature of their relationship and limited evidence that the parties undertook social activities together, at [24].

    19.4 Nature of the persons' commitment to each other: The MRT was not satisfied that the parties offered each other companionship and emotional support. The MRT was not satisfied that the parties saw the relationship as long term, at [34].

    20. Having considered all of the evidence, the MRT was not satisfied that at the time of the decision the parties had a mutual commitment to a shared life to the exclusion of others or that their relationship was genuine and continuing, or that they lived together and not separately and apart on a permanent basis, at [38].

    21. The applicant claimed that he called the Department and told them that he had been badly treated by his sponsor, however it is not clear when he claims to have made this phone call. The applicant claimed that until he made that call he had been unaware that he needed to make a family violence claim, at [41].

    22. The applicant told the MRT that five to six months ago his doctor had referred him to a psychologist. He stated that he had his first appointment with a counsellor on 6 January 2015 and that he had completed seven sessions since that date. The applicant stated that he had ten more sessions to take, at [42].

    23. The MRT had regard to the applicant's claimed family violence, however found that as it had determined that the parties had not been in a spousal relationship the applicant was not able to satisfy clause 100.221(4), at [43]-[44].”

1. In considering whether it would be in the interests of justice to extend time to the applicant, the applicant’s grounds of judicial review are as follows:

   “1. The Tribunal failed to understand and apply the law that I am a victim of domestic violence.

   2. The Tribunal failed to accept that my partner and I lived as husband and wife and were in a spousal relationship and not only shared a sexual relationship as it appeared in the decision at point 43.

   3. The Tribunal failed to consider that I lived with my wife as committed couple and when I came to Australia and after a short time I became a victim and such was not considered according to law.”

2. Each of the grounds of the applicant’s application for judicial review was interpreted for the applicant, and the applicant was invited to say whatever he wished in support of those grounds. 

3. In Ground 1, the applicant alleged that he was a victim of family violence and that the MRT had failed to understand and apply the correct the law. The applicant submitted that he had been “kicked out” of his house and that such conduct was not acceptable or fair. He further submitted that the sponsor brought him to Australia and then left him, and that there was nothing for him back in Lebanon.

4. The MRT considered the relevant criteria in relation to whether or not the applicant and the sponsor were in a spousal relationship. Based on the evidence before it, the MRT concluded that they were not in a genuine spousal relationship. Having made that finding, there was no requirement on the MRT to consider the applicant’s allegations of family violence. The MRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.

5. Moreover, the evidence provided by the applicant was insufficient to establish a non-judicially determined claim of family violence, pursuant to reg.1.24 of the Migration Regulations 1994 (Cth) (“the Regulations”), and the applicable legislative instrument, ‘Specification of Evidentiary Requirements – IMMI 12/116’ (“IMMI 12/116”). These provisions required that the applicant provide a statutory declaration deposed to by the claimed victim of family violence, together with statutory declarations from two specified persons.

6. The applicant was represented at the hearing before the MRT by his migration agent, Mr Toufic Laba Sarkis. The applicant submitted only one statutory declaration which met the requirements. As such, the applicant did not meet the evidentiary threshold to establish a claim of family violence. Accordingly, the issue of family violence was not required to be considered by the MRT. 

7. In the circumstances, the complaint in Ground 1 does not raise an arguable case and has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant. 

8. In Ground 2, the applicant asserts that the MRT failed to accept that the applicant and his sponsor lived as husband and wife and were in a genuine spousal relationship as opposed to a mere sexual relationship.

9. A fair reading of the MRT’s decision record makes clear that the MRT considered in some detail all the aspects of the applicant’s relationship in concluding that the applicant and the sponsor were not in a genuine spousal relationship. The MRT noted that it considered all the circumstances of the applicant’s relationship, including the applicant’s claim of family violence, and found that the parties shared a sexual relationship and not a spousal relationship. That finding would appear to be open to the MRT on the evidence and material before it and for the reasons it gave.

10. Accordingly, Ground 2 appears more to be a disagreement with the findings of the MRT.  Such a complaint invites merits review, which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ).

11. Further, it is well established that the MRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J).

12. In the circumstances, the complaint in Ground 2 does not raise an arguable case and has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant.

13. In Ground 3, the applicant asserts that the MRT failed to consider that he lived with his wife as a committed couple when he came to Australia, and that he became a victim shortly afterwards.

14. The only submission made by the applicant this morning in support of Ground 3 was that his wife loved someone else and did not love him, that he became a victim, and that these matters were not considered by the MRT.

15. As set out in my Reasons in consideration of Grounds 1 and 2 above, such a complaint is not made out. 

16. The MRT’s findings would appear to be open to it on the evidence and the material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

17. As is clear from these Reasons, the MRT was aware of the applicant’s claim to be a victim of family violence. However, the MRT made no final conclusion about that claim as it was not satisfied on the evidence before it that a spousal relationship had ever existed between the applicant and his sponsor. 

18. Accordingly, the MRT found that the applicant did not meet the requirements in cl.100.221(4) of Schedule 2 to the Regulations. Therefore, the MRT was not obliged to give further consideration to the applicant’s claim of family violence.

19. In the circumstances, the complaint in Ground 3 does not raise an arguable case and has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant.

Conclusion

1. The grounds of the applicant’s application for judicial review of the MRT’s decision do not raise an arguable case for the relief claimed or  have sufficient prospects of success such that it would be in the interests of justice that time be extended to the applicant to seek judicial review of the MRT’s decision.

2. The first respondent did not suggest that there was any prejudice to the first respondent in the event that the applicant’s application for an extension of time was granted.

3. I accept that there is prejudice to the applicant in the event that time is not extended to him. However, I am not satisfied that any prejudice to the applicant outweighs the unsatisfactory explanation for the applicant’s delay; the length of the delay, which at six months is not insubstantial; and the lack of prospects of success of any of the grounds identified by the applicant for establishing jurisdictional error on the part of the MRT.

4. Further, no error is apparent on the face of the MRT’s decision record. A fair reading of the MRT’s decision record makes clear that the MRT considered the applicant’s claims, made relevant findings, and applied the correct law in reaching its conclusions.

5. In the circumstances, even if the Court was satisfied with the applicant’s explanation for his delay, there is no utility in extending time to the applicant. 

6. Accordingly, the applicant’s application that time be extended to him to seek judicial review of the MRT’s decision dated 10 February 2016, is refused.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:      11 February 2016