CALIN v Minister for Immigration
[2018] FCCA 1651
•22 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALIN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1651 |
| Catchwords: MIGRATION – Amended application for the Minister to consider exercising the power under s.351 of the Migration Act 1958 (Cth) – Decision made by Assistant Minister – whether decision falls outside s.474(7) of the Migration Act 1958 (Cth) – s.19 of the Acts Interpretation Act 1901 (Cth) – Court has no jurisdiction – amended application dismissed. PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – factors considered – whether there are reasonable prospects of success – no reasonable prospects of success – application refused. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.19, 34AAB(5) |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14 |
| Applicant: | LILIAN CALIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 443 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 22 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Aristei |
| Solicitors for the Applicant: | Irwin Legal |
| Counsel for the Respondents: | Ms S. Oliver |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application to extend time made 17 August 2017 is refused.
The amended application seeking review of a decision made by the Assistant Minster on 25 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 443 of 2017
| LILIAN CALIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By originating application filed on 17 August 2017, amended on 18 December 2017, the applicant seeks judicial review of a decision of the Migration and Refugee Division of the Administrative Appeals Tribunal (the “Tribunal”) made on 7 March 2017 to affirm a decision made by a delegate of the Minster for Immigration (the “Minister”) to refuse to grant her a Partner (Residence) (Class BS) visa.
The applicant also seeks review of a decision made by the Assistant Minster for Immigration (the “Assistant Minister”) on 25 July 2017 to decline to exercise his power to intervene in her case pursuant to s.351 of the Migration Act 1958 (Cth) (the “Act”).
The applicant seeks an order that the decision of the Tribunal be quashed and a writ of mandamus be directed to the Tribunal, requiring the applicant’s application be determined according to law.
As part of her application, the applicant also seeks an extension of time in which to file her application for judicial review of the Tribunal’s decision.
Background
The Court had before it a Court Book (“CB”) numbering 311 pages and a supplementary Court Book numbering 12 pages. The Court also had the following written submissions from the parties:
a)written submissions from the applicant dated 12 April 2018;
b)written submissions from the Minister dated 16 April 2018;
c)written submissions in response from the applicant dated 19 April 2018;
d)further written submissions from the Minister dated 4 May 2018; and
e)written submissions in reply from the applicant dated 14 May 2018.
The applicant was represented by Mr Aristei of Irwin Legal. The Minister was represented by Ms Oliver of Counsel.
The quality of the written and oral submissions in this matter was of a particularly high standard. The Court thanks Ms Oliver and Mr Aristei for their invaluable assistance both during and after the hearing of this matter.
The Court has reviewed the factual material provided by the Minister in his written submissions dated 16 April 2018 and adopts the factual and procedural background outlined at paragraphs 7−16 as the procedural and factual background to these proceedings. This background information is, relevantly, as follows.
On 25 June 2013, the applicant applied for a combined Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) (Subclass 801) visa (CB 3-36). She was sponsored by a man she married in May 2013 (“Sponsor”) (CB 7−10)
On 22 July 2013, the applicant was granted a temporary partner visa.
On 8 October 2014, the Department of Immigration and Border Protection (the “Department”) wrote to the applicant advising her that it had received information that the spousal relationship had broken down. She was provided an opportunity to respond with further information (CB 151−154).
On 23 October 2014, the applicant provided a response to the request for information. The applicant advised that the relationship had been abusive with verbal and emotional violence (CB156).
On 20 March 2015, the applicant was notified that her family violence claims had been referred to an Independent Expert (“IE”) (CB 220−221).
On 1 July 2015, a delegate of the Minister refused the applicant’s visa application on the basis that the applicant did not satisfy the requirements of cl.801.221(4) and (6) of the Migration Regulations 1994 (the “Regulations”). The delegate was not satisfied that the applicant had suffered family violence committed by the sponsor (CB 250−264).
On 16 July 2015, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 266−270).
On 24 November 2016, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments scheduled for 12 December 2016 (CB 275−276).
On 29 November 2016, the applicant provided a response to the hearing invitation (CB 279−281).
On 12 December 2016, the applicant appeared at the Tribunal hearing. On 7 March 2017, the Tribunal affirmed the delegate’s decision not to grant the visa (CB 296–308).
On or around 31 March 2017, the applicant applied for Ministerial Intervention pursuant to s.351 of the Act.
On 25 July 2017, the Minister refused to intervene on the basis that it would not be in the public interest to do so.
On 17 August 2017, the applicant filed an application in this Court seeking judicial review of the decision of the Tribunal. This application was approximately 128 days outside of the 35 day time limit prescribed by s.477(1) of the Act.
Judicial Review Application – Extension of time
Section 477(1) of the Act provides that an application to the Court for a remedy to be granted under s.476 of the Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
Section 477(2) of the Act provides that the Court may, by order, extend that 35 day period as the Court considers appropriate if:
a)an application for that order has been made in writing to the 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
As noted above, the applicant filed her application with this Court out of time and seeks an extension of time within which to file it, pursuant to s.477(2) of the Act.
In this case, the applicant’s application for an extension of time was made in writing and relied on the following two grounds in support:
1. The Applicant misunderstood the right to obtain a judicial review of the AAT’s decision from a Court of law as being unavailable if she sought a Ministerial intervention under s351 of the Migration Act (Cth).
2. Such other grounds as this Honourable Court may deem fit.
In support of her substantive application, and thereby her application for an extension of time, the applicant filed the following affidavits:
a)the affidavits of Andrew Daniel Neagu sworn 17 August 2017, 18 December 2017 and 19 December 2017 respectively; and
b)the affidavit of the applicant sworn 17 August 2017 (the “Applicant’s Affidavit”).
The affidavits of Andrew Daniel Neagu, the applicant’s legal representative, annex various documents in support of the grounds relied upon by the applicant in her substantive application.
The Applicant’s Affidavit provides the factual background to her matter before the Tribunal. As to what occurred after the applicant was notified of the Tribunal’s decision (specifically in relation to the applicant’s misunderstanding of her right to obtain a judicial review of the Tribunal’s decision in this Court and the subsequent delay in filing her review application) the Applicant’s Affidavit relevantly reads as follows:
14.When I received the AAT’s decision by email (in March 2017), I understood the letter gave me the choice of appealing to the Court or alternatively applying to the Minister (but not both). I chose to apply to the Minister (and sought a Ministerial intervention) within the time-limit notified in the Department’s letter to me.
15. I later received an email in late July 2017 from the “assistant Minister’s” secretary, notifying me that the Minister for the Department (whom I had written to) refused to intervene. I was devastated by that decision, as I believed (and still believe) that I am a person who would make a real contribution in Australia as a resident.
16. The worst thing about the statement from the Ministers office were the words: “It is NOT in the interest of the Australian community” for the Minister to intervene (my emphasis). I have been doing community work throughout my stay in Australia. I’ve only worked with social cases of disadvantaged people, and and [sic] I’ve even saved lives by helping some of them. (This is all set out in one of the attachments I’d sent to the Minister’s office).
17. I have been informed by my solicitors and verily believe that I might have been entitled to apply to the Court for a review of the AAT’s decision made in March 2017, even if I also lodged an application with the Minister. However, at the time, I believed (from reading the email) that I had to choose between either appealing to the Minister’s office to intervene, or to the Court, if I was aggrieved by the AAT’s decision (but not both).
18. About two days prior to my swearing of this affidavit, I was told about this possible right (referred to in the previous paragraph) after I sought legal assistance from my present solicitors (to consider an appeal from the Minister’s refusal to intervene).
The Court notes that, despite the above, neither the applicant nor her legal representative provided evidence showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
Rule 44.05(2)(c) of the of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) provides that:
(2) An application must be supported by an affidavit including:
…
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Rule 1.06(1) of the Rules provides that the Court may, in the interests of justice, dispense with compliance with any of the Rules at any time.
As noted by Judge Lucev in Sandan v Minister for Immigration & Anor [2015] FCCA 1166 (“Sandan”):
[24] … there is, however, a statutory rule, and unless compliance with that rule is dispensed with in the interests of justice under r 1.06(1) of the FCC Rules — which provides that: “The court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules, at any time“ — the requirements of r 44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang, FCR at 391 per Merkel J; Broad Spectrum Training Pty Ltd v Bidding Buzz Ltd [2010] FMCA 932 ; (2010) 244 FLR 335 at [35]–[40] per Lucev FM, and cases there cited, applied in WZASC v Minister for Immigration [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC“). Therefore, absent dispensation under r 1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the court to grant an extension of time.
(emphasis added)
Having regard to the observations in Sandan, it is insufficient (in the absence of affidavit evidence showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time) for the applicant to submit in her written submissions dated 14 April 2018 that :
Applying the relevant tests, it would be grossly unfair to dismiss this entire application solely on the basis of the delay in lodgement, given the strength or alternatively relevance of the other “balancing” matters raised herein
In this case, compliance with the Rules has not been dispensed with and there is nothing in the applicant’s affidavit evidence showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time. Accordingly, the applicant has failed to comply with requirements of r.44.05(2)(c) of the Rules and as a result the Court cannot grant an extension of time: see Mutoya v Minister for Immigration & Anor [2017] FCCA 2033 (“Mutoya”) at [19] per Lucev J.
It is certainly arguable that the Court is prohibited from granting the extension of time sought because of the non-compliance with r.44.05(2)(c) of the Rules in circumstances where compliance with the Rules has not been dispensed with.
Despite this, the Court has adopted the approach taken by Judge Lucev in Mutoya and will take into account the relevant considerations when deciding whether an extension of time should be granted under s.477(2) of the Act.
The paramount consideration for the Court is whether it is in the interests of the administration of justice to extend the time for the applicant to file her application: s.477(2)(b) of the Act.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 the Federal Court of Australia (per Wilcox J at [348]-[350]) provided a non-exhaustive list of factors relevant to whether an extension of time ought to be granted. These include:
a)the extent of the delay;
b)the explanation for the delay;
c)any prejudice a respondent might suffer because of the delay; and
d)the merits of the proposed application.
Prejudice
It was conceded by counsel for the Minister that the Minister does not face any significant prejudice.
Accordingly, this is a consideration that weighs in favour of granting the extension of time.
Delay
The applicant was notified of the Tribunal’s decision by letter dated 8 March 2017. As a consequence, the ordinary time limit pursuant to s.477(1) of the Act expired on or around 12 April 2017.
The applicant filed her application for judicial review of the Tribunal’s decision with this Court on 17 August 2017, some 128 days after the expiration date.
In this case the length of delay is significant. It is more than three and half times the specified statutory limitation period.
It is uncontroversial that an extension of time is not automatic: see Gallo v Dawson [1990] HCA 30 at [2] per McHugh J.
In Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67 (“Marks”) McHugh J said (at [13]) that “a case would need to be exceptional before the time for commencing proceedings was enlarged by many months”. His Honour went on to say that the explanation for the delay is also a relevant consideration, a point which will be addressed in more detail below.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 McHugh J said of limitation periods (CLR at 553):
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
In that case McHugh J also said that a limitation provision is the general rule; an extension provision is the exception to it (CLR at 553).
With this in mind, the Court finds that the length of the delay here (over three and half times the time limit prescribed by the Act) is significant. It is a very lengthy delay and this weighs heavily against granting the extension of time.
Explanation for delay
Whether an applicant’s explanation for the delay can be said to justify that delay depends on the circumstances of each individual case: ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816 at [20] per Nicholls J.
In this case, the applicant asserts, at paragraphs 14 of her affidavit, that she received the Tribunal’s decision by email in March 2017. Attached to this email was a Tribunal fact sheet which provides information to applicants about decisions of the Migration Division of the Tribunal (the “Fact Sheet”). The applicant said that after reading the “letter” (presumably the Fact Sheet) she thought that she could either appeal to the Court or seek Ministerial intervention but not both. A copy of Fact Sheet is reproduced at CB at 309−311.
The applicant then states, at paragraph 17 of her affidavit, that her misunderstanding of her appeal rights came from reading the Tribunal’s “email”. A copy of the email from the Tribunal to the applicant is reproduced at CB 294. Given the lack of relevant content in the email (other than to annex the Tribunal’s reasons for decision and the Fact Sheet) the Court understands the reference to the Tribunal’s email to be a reference to the Fact Sheet.
The applicant said that once she become aware of her right to apply to the Court, she sought legal advice and lodged her application with this Court within two days.
Conversely, the Minister submitted that the applicant’s explanation for the delay is unconvincing. The Minister argued that there is nothing in the Fact Sheet that would support the applicant’s assertion that she believed she could only seek judicial review of the decision or Ministerial intervention. In any event, it was open to the applicant to seek advice about her review rights.
Having regard to the material before it, the Court agrees with the Minister’s submission that the applicant’s explanation for the considerable delay is unconvincing.
The applicant suggests that her misunderstanding of her appeal rights resulted from an apparent misreading of the Fact Sheet. The applicant has not identified exactly which part of the Fact Sheet induced her to misapprehend her rights. In this regard the Court is left to speculate.
In relation to an applicant’s appeal rights generally, the Fact Sheet relevantly reads as follows:
The Minister may substitute a more favourable decision
The Minister has powers under the Migration Act 1958 to substitute our decision with a decision that is more favourable to the applicant. Generally, the Minister will only do so if there are compelling, compassionate or humanitarian considerations.
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
It is clear that the Fact Sheet advises that an applicant can apply to this Court for judicial review within 35 days of the date of the Tribunal’s decision. It also advises that the Minister may substitute a more favourable decision.
The Court is of the opinion that there is nothing on the face of this document that would suggest that the applicant could only choose between a request for Ministerial intervention or application to this Court.
In SZSDA v Minister for Immigration & Citizenship [2012] FCA 131 Foster J observed that:
38. In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the … Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.
In circumstances where the applicant has not articulated how the Fact Sheet affected her understanding of her appeal rights other than to make a bare assertion of having been misled, the Court is not persuaded that this is a reasonable explanation for the delay.
This weighs against granting the extension of time.
Merits of the Substantive Application
In relation to whether the applicant’s substantive application has merit the Court is guided by the comments of Murphy J in MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201(“MZZLD”) at [19] :
In MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 (at [62]-[63]) Mortimer J said that a judge hearing an application for extension of time should decide whether the substantive application is “plainly hopeless” and that the correct approach included deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. This is long established. In Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 97, [29] French J described the test as whether the substantive application has a reasonable prospect of success, which was “to say no more than that there is a finite non-trivial probability that it will succeed” based upon a necessarily incomplete consideration of the case. His Honour then noted that “[i]t is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account”.
The Court further notes the comments of the Federal Court in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 (at [49] as per Wigney J) that, in the context of an application for an extension of time, it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time.
Unfortunately, determining the merits of the applicant’s case, for the purposes of the extension of time application, is made somewhat more difficult because of the way in which the applicant has prepared her substantive application. In her amended application under the heading “Migration decision details” the applicant has referred to two migration decisions − the decision of the Tribunal on 7 March 2017 and the decision made by the Minister under the Act on 25 July 2017.
Counsel for both the applicant and the Minister rightly acknowledged during the proceedings that the applicant is effectively seeking review of two separate decisions in her substantive application which is somewhat unusual.
As rightly pointed out by counsel for the Minister, there is no bar procedurally to an applicant seeking review of multiple decisions in their substantive application.
The issue then becomes: how does the Court assess the merits of the applicant’s “substantive application” for the purposes of determining the extension of time application?
The grounds of application as articulated by the applicant ultimately seek review of two separate decisions made by unrelated decision makers. The Court is of the opinion that these grounds can be seen as discrete applications within the one document. For this reason and in the interests of clarity, the applicant’s application seeking review the decision of the Tribunal on 7 March 2017 will be referred to as “Ground 1” and the application seeking review of the decision made by the Minister under the Act on 25 July 2017 as “Ground 2”.
The application for an extension of time relates only to the Tribunal’s decision, being Ground 1. Logically, the outcome of that extension of time application will only have a bearing on the Court’s review of Ground 1. This is a point that was agreed upon by counsel for both parties.
Accordingly, the Court is of the opinion that the merits of the applicant’s “substantive application” for the purposes of determining the extension of time application relate to the merits of Ground 1 only.
To that end the Court will now examine the merits of Ground 1.
Ground 1 − The Tribunal’s decision
The Tribunal was satisfied that the applicant and sponsor were in a partner relationship and that the relationship had ended (CB 297, [8]). The applicant stated that she wished to contest the findings of the IE and have her matter referred to another IE (CB 299, [16]−[19]). The Tribunal raised with the applicant at the hearing that it had concerns as to whether the Department had jurisdiction to refer the matter to the IE, as it was not satisfied that the applicant’s evidence met the requirements specified in Schedule 1 of the Ministerial Instrument IMMI 12/116 prescribed pursuant to paragraph 1.24(b) of the Regulations (the “Instrument”)(CB 299, [20]).
The Tribunal set out the evidence provided by the applicant and identified that it had “difficulty accepting that any, bar one of the reports/statutory declarations submitted” met the requirements of reg.1.24 (CB 299–302, [21]). The Tribunal accepted that the statutory declaration of Ms Katrina Sharp, clinical nurse, met the requirements of reg.1.24 (CB 302, [25]). The Tribunal did not, however, accept that the further evidence satisfied the requirements of reg.1.24. The Tribunal found that:
a)The outpatient referral form simply stated that the applicant “believes” she had been suffering from domestic violence but did not detail any treatment provided by the doctor who saw her on that occasion (CB 302, [26]).
b)It was willing to accept that Ms Amanda Sheppard was a member of the Australian Association of Social Workers or a person eligible to be a member of that association. The Tribunal found, however, that Ms Sheppard was not acting in her professional capacity as a social worker and that she did not actually provide the applicant with any assistance (CB 302–303, [28]−[31]).
c)It accepted that Unami Magwenzi was a psychologist registered to practice in Western Australia. The Tribunal found that Ms/Mr Magwenzi did not appear to see the applicant for the purposes of treatment. Notably, the Tribunal further found that the statutory declaration did not provide the reasons as to why the psychologist considered that the applicant had been subject to family violence (CB 303–304, [33]-[34]).
d)It was not satisfied that Ms Finnigan’s statutory declaration clearly indicated that she had arrived at an opinion that the applicant was subject to relevant family violence or detailed the reasons for such opinion. Furthermore, the Tribunal found that the statutory declaration did not identify the alleged perpetrator, simply referring to the applicant’s “ex-partner” (CB 304, [35]−[38]).
e)The medical certificate from Dr Elizabeth Kerr did not detail the physical injuries or the treatment for mental health that was consistent with the claimed family violence (CB 304, [39]).
The Tribunal explained to the applicant that unless the evidentiary requirements were met it had no jurisdiction to refer the case to another IE (CB 304, [40]). The Tribunal found that the evidence did not meet the requirements of reg.1.24 and, as such, a non-judicially determined claim of family violence had not been made under reg.1.23 (CB304, [41]). The Tribunal noted that despite being “encouraged” to seek legal advice about these evidentiary requirements no further documentation had been submitted (CB 305, [42]). Accordingly, the applicant did not meet the requirements of cl.801.221(6)(b) and (c) (CB 305, [43]).
The applicant articulated Ground 1 of her application as follows:
1.The decision of the Administrative Appeals Tribunal (AAT) made on 7 March 2017 (a copy of which is contained at page 297 of the Court Book) was vitiated by jurisdictional error in that the AAT misconstrued and misapplied the requirements of Schedule 1 of Ministerial instrument IMMI 12/116 (‘Instrument’), prescribed pursuant to paragraph l.24(b) of the Migration Regulations, and thereby erroneously refused to consider material demonstrative of a claim of non-judicially determined domestic violence which the AAT was bound to consider, constituting a denial of procedural fairness or constructive failure to exercise jurisdiction.
Particulars
a.The AAT refused to consider an outpatient referral form dated 23 October 2014 by a Doctor (a copy of which is contained at page 187 of the Court Book) stating the Applicant was “experiencing anxiety and lots of stress … from domestic violence psychologically [sic],”because it did not specify any ‘treatment’, whereas the Instrument contemplates ‘details [of] the physical injuries’ as an alternative;
b. The AAT refused to consider a statutory declaration by a registered psychologist (a copy of which is contained at page 213 of the Court Book) describing the previous history of treatment, a further current assessment, and a history of ‘end[ing] up in [] (sic) emotionally abusive relationship[s]”, because the declaration did not “provide the reason as to why the psychologist considered the Applicant had been subject to family violence", whereas the reason or reasons were expressed in or are necessarily implied from the various statements in the said declaration, leading to the stated opinion that the Applicant had ‘once again ended up in an emotionally abusive relationship which constitutes family violence’ and;
c.The AAT refused to consider a statutory declaration by a clinical psychologist (a copy of which is contained at page 239 of the Court Book) stating a conclusion based upon psychometric testing administered to the Applicant showing that she was “experiencing symptoms of depression, anxiety and Post Traumatic Stress Disorder following the emotionally abusive relationship she was in ... with her ex-partner”, because it did not ‘identify the alleged perpetrator’, nor provided ‘reasons for the opinion’. Contrary to the AAT’s stated grounds for refusal:
i. The alleged perpetrator was sufficiently identified in the said statutory declaration as being the Applicant’s ‘ex-partner’, which the declaration expressly referred to as the person with whom the Applicant had a relationship for a period of approximately 12 months, which relationship ended in December 2013;
ii. The reasons for the opinion were expressed or necessarily implied in the said statutory declaration, inter alia, where it was stated that the Post Traumatic Stress Disorder symptoms were ‘consistent with the history described’, and where it was stated that the psychometric data supported the Applicant’s claims of an ‘emotionally abusive relationship’ which she had been in with her ex-partner;
d.Given that the AAT had effectively ruled that there was no jurisdiction for it to consider the Independent Expert Report (a copy of which is contained at page 304 [40] of the Court Book), the Tribunal erred by affirming the decision under review upon the basis that there had not been a minimum of 2 items of evidence from the list in schedule 1 to the Instrument presented to it;
e. Alternatively, the Independent Expert Report relied upon by the AAT did not constitute evidence in support of the Tribunal’s finding or otherwise comply with the Migration Regulations as the Report’s conclusion that there was insufficient information to make any determination of “family violence” did not constitute an actual opinion (nor grounds for any such opinion) able to be relied upon.
(emphasis in original)
The Minister counters that there is no merit to this ground and that what the applicant is seeking is impermissible merits review of the Tribunal’s decision. The Minister contends that the Tribunal correctly applied Schedule 1 of the Instrument and that there is nothing in the Tribunal’s decision that would indicate there had been a denial of procedural fairness or constructive failure to exercise jurisdiction as claimed by the applicant.
The Court agrees with the Minister’s submission that what has been sought here is impermissible merits review. The weighing of various pieces of evidence is a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] citing Abebe v The Commonwealth [1999] HCA 14.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [10]) the Court said:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
Prima facie, the findings made by the Tribunal were open to it on the evidence it had before it. As a consequence, the Court is not satisfied that the applicant has shown that the Tribunal’s decision was vitiated by jurisdictional error.
Based on the necessarily preliminary consideration of the applicant’s case, the Court is not satisfied that the merits of the applicant’s case meet the requisite standard that there be a finite non-trivial probability that it will succeed: see Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878 at [29].
Conclusion
As a consequence of the finding that the merits of the applicant’s case do not meet the requisite standard, together with the applicant’s lack of a reasonable explanation for the significant delay in filing her application to this Court, the Court is not satisfied that there is a basis on which to extend time in the interests of the administration of justice pursuant to s.477(2) of the Act. It is then appropriate to refuse the application for an extension of time.
Ground 2 – The Minister’s Decision
As pointed out above, Ground 2 seeks review of the Minister’s decision not to exercise his powers under s.351 of the Act. The applicant articulated this ground of her application as follows:
2.Further or alternatively, the decision of the First Respondent purportedly pursuant to s351(1) of the Migration Act (Cth) (‘the Act’) made on 25 July 2017 (‘the Decision’) was vitiated by jurisdictional error upon the grounds that:
a. On or about 3 April 2017, the Applicant requested the First Respondent to exercise his said power pursuant to s 351 (1) of the Act to substitute the Second Respondent’s decision made on 7 March 2017 for a decision that would be more favourable to the Applicant;
b.
in thatThesaidDecision was, in fact, made by the Assistant Minister for Immigration and Border Protection, Mr Alexander George Hawke (‘the Assistant Minister’), and in the premises, the said power was not thereby validly exercised by the First Respondent personally, as required by s 351 (3) of the Act;c.
andAccordingly, the Decision was lacking in jurisdiction asthe latter personthe Assistant Minister did not haveactualany or alternativelyorsufficient jurisdiction to hear or determine the Applicant’s request to the First Respondentthat applicationaccording to law (whether pursuant to s64 of the Commonwealth Constitution, or alternatively by any validating statutory authority or regulations purportedly enabling the Assistant Minister to exercise the said power);d.Alternatively, the Decision purportedly made by the Assistant Minister was not invalid by reason that at the time of the said Decision the Assistant Minister was incapable of either being chosen or sitting as a member of the House of Representatives of the Commonwealth Government or, in the premises, of exercising powers in his capacity as the Assistant Minister because of the effect of s 44 (i) of the Commonwealth Constitution;
e. At all material times, the Assistant Minister was liable to be disqualified from his membership of the House of Representatives and his consequential appointment as the Assistant Minister as he was either the subject of a foreign power, namely the country of Greece, or alternatively was entitled to the rights or privileges of a subject or alternatively of a citizen of the country of Greece;
Particulars
(i) The Assistant Minister’s mother was born in the country of Greece, and was a Greek citizen at the time she migrated to Australia in or about 1953;
(ii) The Assistant Minister was born on 9 July 1977;
(iii) In the premises, the Assistant Minister acquired Greek nationality at the time of his birth, as he was born to a parent of Greek nationality
(iv) At the time of his nomination and his subsequent election as a Member of the House of Representatives in or about July 2016 and at the date of the Decision, the Assistant Minister had not renounced or otherwise discharged his right or privilege of Greek nationality, nor his right or privilege of acquiring Greek citizenship by descent.
f. In the premises, the Assistant Minister had not taken reasonable steps to renounce or otherwise discharge his foreign nationality prior to his said nomination and subsequent appointment as an elected Member of the House of Representatives
g. Further particulars may be provided after relevant discovery or answers to interrogatories have been provided by or on behalf of the First Respondent.
During the proceedings, it became apparent that the preliminary issue to be determined in relation to this ground of review was whether this Court had jurisdiction to hear this issue as articulated.
Jurisdiction
Section 476(1) of the Act outlines the Court’s jurisdiction in relation to migration decisions as follows:
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
A request for the Minister to substitute a more favourable decision than that given by the Tribunal pursuant to s.351(1) of the Act which is declined is not a “migration decision” for the purposes of s.476 of the Act.
This is so because s.474(7) of the Act expressly excises from this Court’s jurisdiction a decision of the Minister not to exercise or not to consider the exercise of the Minister’s powers relevantly under s.351 of the Act: Santos v Minister for Immigration & Anor [2017] FCCA 2276 at [14] per Street J.
The Act does not define “Minister”. This means that the definition of “Minister” contained in the Acts Interpretation Act 1901 (Cth) (the “Interpretation Act”) applies.
Item 1 of the table in s.19(1) of the Interpretation Act relevantly provides that if a provision refers to a Minister by using the expression “the Minister” without identifying the Minister then the Minister referred to is the Minister or any of the Ministers, administering the provision on the relevant day in relation to the relevant matter.
Broadly, the applicant submitted that the relevant Ministerial Intervention decision is not within the ambit of s.474(7) of the Act because the responsible Minister (having decided that he would consider the exercise of his power under s.351 of the Act) did not personally exercise those powers by making the final decision not to intervene in the applicant’s case: s.351(3) of the Act.
The applicant also argued that she was not afforded procedural fairness because it was the Assistant Minister that made the decision not intervene in the applicant’s matter, not the Minister personally.
In support, the applicant relied on the High Court’s decision in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29 at [58]-[73] (particularly at [68]–[71]).
Conversely, the Minister submitted that at the time the decision under s.351 of the Act was made the Hon. Alex Hawke MP was the Assistant Minister and was appointed a Minister of State pursuant to s.64 of the Constitution with the designation Parliamentary Secretary pursuant to s.4 of the Ministers ofState Act 1952 (Cth) (the “State Act”).
The Minister argued that the Court should be satisfied that the Assistant fell within the term “Minister” as defined by s.19 of the Interpretation Act and was therefore authorised to make the decision under s.351 of the Act. In support, the Minister relied on Re Patterson; ex parte Taylore [2001] HCA 51 (“Re Patterson”) where the High Court considered the phrase “the Minister personally” as it appears in s.501(4) of the Act and whether a Parliamentary Secretary appointed under s.4 of the State Act could personally exercise statutory powers granted to the “Minister”. The Court found that, having regard to the definition of Minister in the Interpretation Act and the provisions for the appointment of Ministers, the Parliamentary Secretary was one of the Ministers of State administering the provisions of the Migration Act, and therefore fell within the definition of “Minister”. The Court found therefore that the Parliamentary Secretary was a repository of the power conferred by section 501(4) of the Act.
The Minister submitted that the reasoning in Patterson applies equally to this case.
The Minister also relied on Singh v Minister for Immigration and Border Protection [2015] FCCA 831 in which Judge Whelan considered (at [19]) that:
The application insofar as it relates to the decision by the Assistant Minister not to exercise her power under s.351 of the Act is misconceived as it is not within the jurisdiction of this Court to review such a decision
Consideration
As a starting point, the applicant conceded that at all material times:
a)the Hon. Alex Hawke MP was the Assistant Minister when he made the decision not to intervene in the applicant’s case pursuant to s.351 of the Act;
b)the Assistant Minister had been appointed as “Minister of the State”, pursuant to s.64 of the Constitution; and
c)when Hon. Alex Hawke MP made the decision pursuant to s.351 of the Act he was acting in his capacity as the Assistant Minister and was empowered to administer the relevant provisions of the Act.
However, the applicant denied that the Assistant Minister was validly appointed, whether as a Minister of State or as the Assistant Minister for the purposes of administering provisions of the Act – a point which is addressed below.
In the circumstances, the Court agrees with the Minister’s contention that in this case s.19 of the Interpretation Act clearly applies to the Assistant Minister.
The Court also agrees with the proposition that the reasoning in RePatterson applies in this case such that when the Assistant Minister made the decision personally in response to the applicant’s request for Ministerial Intervention he was acting as the “Minister” for the purposes of s.19 and therefore authorised to made decision under s.351of the Act.
Therefore, as an aside, there is no need for a delegation by the Minister to the Assistant Minister under s.34AAB(5) of the Interpretation Act as contended by the applicant.
Further, the questions relating to whether or not the Assistant Minister was a person declared by the Constitution to be incapable of sitting as Member of Parliament cannot be determined by this Court, as per Alley v Gillespie [2018] HCA 11 (“Alley”). In Alley, Nettle and Gordon JJ (at [113]) concluded that any question respecting the qualifications of a senator or member may be determined only by the House in which the question arises or by one of the processes prescribed by the Commonwealth Electoral Act. This conclusion was reiterated in Alley, in effect, by Kiefel CJ, Bell, Keane and Edelman JJ at [4], [28]-[30] and Gageler at [73].
Accordingly, the Court cannot and will not address the applicant’s contentions on that point being subparagraphs (d)-(g) of Ground 2 in her Amended Application.
For the reasons given above, the Court finds that the Assistant Minister’s decision under s.351 of the Act does fall within s.474(7) of the Act and is therefore beyond the jurisdiction of this Court to review.
As a result, Ground 2 must fail.
Conclusion
For the reasons above:
a)the applicant’s application for an extension of time is refused; and
b)the applicant’s amended application seeking review of a decision made by the Assistant Minster on 25 July 2017 is dismissed.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 22 June 2018
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