CHAHIN and Anor v Minister For Immigration and Anor (No.2)
[2017] FCCA 2097
•1 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAHIN & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 2097 |
| Catchwords: MIGRATION – Judicial review of decision by Administrative Appeals Tribunal affirming decision not to grant applicants a Protection visa – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F(1), 5F(2), 5F(3), 362A, 375A, 476, 477(1), 477(2) Migration Regulations 1994 (Cth), reg.1.15A, 1.15A(2), 1.15A(3) |
| Cases cited: CKG15 v Minister for Immigration & Anor [2017] FCCA 938 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 |
| First Applicant: | HELENE CHAHIN |
| Second Applicant: | YOUSSEF NASSIF SAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1456 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2017 |
REPRESENTATION
| Applicants in person assisted by an interpreter. |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1456 of 2016
| HELENE CHAHIN |
First Applicant
| YOUSSEF NASSIF SAM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicants a Partner (Temporary)(Class UK) visa (Partner visa).
The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 18 February 2016, but the applicants did not file their application with this Court until 8 June 2016. I will first set out the principles that must guide me in determining this application for an extension of time.
Principles governing exercise of power under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]
[1] [2013] FCA 1284 at [47]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]
[2] [2015] FCA 1391 at [63] (cases cited omitted)
[3] [2015] FCA 1391 at [62] (cases cited omitted)
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]
[4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]
[5] [2015] FCA 1391 at [62]
Explanation for delay
In their application the applicants provided the following explanation for their delay in applying for judicial review:
Grounds of application for extension of time
1. When my application was refused on 18/2/2016 my lawyer sent a letter to the Minister and I now realise that the Minister’s letter was not referred to him. I became unlawful and now the Department want to send me back to Lebanon, a country where I will suffer extremely because I have no assets, no income and no support.
2. I now wish to lodge an application with the Federal Circuit Court because my daughter was made aware of my rights to lodge an application under the new Federal Court decision Waensila.
Each applicant made statements from the bar table about the reasons they did not file the application within 35 days. The first applicant stated she consulted a “Mr Laba” (possibly a reference to Mr Laba Sarkis) who said he would lodge an appeal for the applicants. The second applicant said he and the first applicant consulted “Mr Laba” about what they needed to do to remain in Australia lawfully, and that “Mr Laba” asked the applicants to lodge an application to this Court.
Neither the matters stated in the application nor what the applicants stated from the bar table, assuming those statements are true, adequately explain the applicants’ delay. The suggestion is that the applicants were expecting “Mr Laba” to do something for them, either to apply to the Minister or to make an application to this Court. Apart from being unclear about what they expected “Mr Laba” would do for them, the applicants did not suggest they took any steps to determine whether “Mr Laba” did in fact do that which they understood “Mr Laba” had indicated he would do.
I should here mention the “Federal Court decision Waensila” referred to by the applicants. I take that to be a reference to the Full Federal Court’s decision in Waensila v Minister for Immigration and Border Protection.[6] That decision was handed down on 11 March 2016, which is less than 35 days after the Tribunal made its decision, and almost three months before the applicants filed their application. The applicants do not state when they became aware of the Full Federal Court’s decision in Waensila, or the circumstances in which they became aware. The applicant’s reliance on Waensila, therefore, does not present an adequate explanation for the applicant’s delay in commencing these proceedings. (I consider the relevance of Waensila later in these reasons.)
[6] [2016] FCAFC 32
Merits of substantive grounds for relief
I next consider whether the application discloses any arguable claims for relief. That requires me to set out the relevant background to the Tribunal’s decision.
Background
The first applicant (applicant) is a citizen of Lebanon. The second applicant is her adult son. The applicant first entered Australia on 25 August 2002 after being granted a Temporary Work (Skilled) (Subclass 457) visa as a dependent of her late husband. The applicant and her late husband unsuccessfully applied for a second 457 visa. They applied to this Court for judicial review and, after the Court dismissed that application, the applicant and her late husband unsuccessfully appealed to the Federal Court. The applicant and her late husband then applied for a protection visa, which was refused. The applicant’s husband passed away on 10 March 2012. The Refugee Review Tribunal affirmed the delegate’s decision on 7 August 2012 and, on 23 April 2014, a request for Ministerial intervention was finalised as “not considered”.
On 28 June 2014 the applicant applied for a Partner visa. To have been entitled to a Partner visa, the applicant had to satisfy cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided that an applicant for a Partner visa had to demonstrate, at the time of decision, that he or she is “the spouse or de facto partner of the sponsoring partner”. In her application the applicant stated she married the sponsor, Mr Arnaout, on 25 June 2014. The applicant, therefore, had to satisfy the delegate and, on review, the Tribunal, that, at the time of decision, the applicant was “the spouse” of the sponsor.
14.Subsection 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a married relationship. Under s.5F(2) of the Act, 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 live together, or do not live separately and apart on a permanent basis.
15.Subsection 5F(3) of the Act provides that 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 have made provision, and this is to be found in reg.1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for, among other things, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
(a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
Before the Tribunal
The applicant appeared before the Tribunal on 7 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Arnaout, the second applicant, and another person. The Tribunal found the oral evidence given by the applicant and her sponsor at times hesitant and vague and that some of their oral evidence was inconsistent with each other’s and with the evidence they provided to the delegate. The Tribunal so found because the applicant and Mr Arnaout stated in their application for the Partner visa that they met in May 2010, but gave evidence that they met in 2013 or 2014. The Tribunal found that Mr Arnaout adjusted his evidence when questioned and that both the applicant and Mr Arnaout had limited knowledge about the other’s personal circumstances. Mr Arnaout was unable to tell the Tribunal how many siblings the applicant has and said he had never asked the applicant. The Tribunal did not consider either party to be credible and placed little weight on their oral evidence.
The Tribunal then considered whether the matters specified by reg.1.15A(3) of the Regulations were satisfied by the evidence that was before it. The Tribunal did not accept the parties had ever pooled their financial resources or shared day-to-day household expenses,[7] or that they had lived together at the house they claimed to have lived together.[8] Although the Tribunal was satisfied there had been some social recognition of the relationship among the applicant’s immediate family and some of her close friends, there was limited independent evidence that would indicate that the applicant and Mr Arnaout represented themselves to other people as being married to each other, or that they had ever undertaken joint social activities. The Tribunal did not accept the applicant informed her siblings of her marriage to Mr Arnaout, and it considered it significant that Mr Arnaout concealed the relationship from his family, and in particular from his mother and son.[9] Finally, the Tribunal did not accept the applicant and Mr Arnaout provided one another with emotional support or that they saw their relationship as long term.[10]
[7] CB1, page 201, [25]
[8] CB1, page 202, [29]
[9] CB1, page 203, [34]
[10] CB1, page 203, [41]
Grounds of application
The grounds of application contain in effect one ground:
1.The Tribunal failed to consider and act on Schedule 3 criteria and failed to consider my compelling circumstances at the time of application and at the time of the decision.
2.I will provide to the Honourable Court copy of the transcript with supporting evidence.
These grounds were interpreted to the applicants at the hearing before me. The applicant did not make any submission that addressed the ground. In response to my invitation to make submissions in relation to the ground, the applicant asked rhetorically: “what can I say?” The applicant said she was nervous, and that she cannot return to her country because she has no one to return to. The second applicant also did not address the ground stated in the application. He did say, however, that before the Tribunal, he was asked to leave the room when the applicant gave her evidence. The second applicant also submitted that the Tribunal accepted his evidence.
The ground stated in the application appears to arise out of the applicant’s not holding a substantive visa at the time she applied for the Partner visa. That was a criterion required by Schedule 3 to the Regulations that could have been waived if there were compelling reasons. The Tribunal referred to the applicant’s having submitted that there were compelling reasons in her case for not applying the Schedule 3 criterion.[11] The Tribunal referred to there being no dispute the applicant was not the holder of a substantive visa “at the time of application”.[12] That arguably revealed the Tribunal was of the view, contrary to what the Full Federal Court held in Waensila, that the existence of compelling reasons was to be assessed at the time of application.
[11] CB1, page 204, [45]
[12] CB1, page 204, [44]
As submitted by the Minister, however, this gives rise to no arguable case of jurisdictional error. The Tribunal itself noted it was not necessary for it to consider whether the Schedule 3 criteria should be waived because the Tribunal found the applicant did not meet an essential criterion for the grant of the Partner visa specified in cl.820.211(2)(a) of Schedule 2 to the Regulations.[13]
[13] CB1, page 204, [46]
That leaves the submissions the second applicant made before me. That the Tribunal asked the second applicant to leave the hearing room while the applicant gave her evidence does not raise any arguable case of jurisdictional error.
375A certificate
Although not raised in the application, the Minister has disclosed to the Court that a certificate had been issued purportedly pursuant to s.375A of the Act (375A certificate). The issue of the 375A certificate, therefore, requires me to consider whether the Full Federal Court’s decision in Minister for Immigration and Border Protection v Singh[14] suggests there may be an arguable case the Tribunal made a jurisdictional error. I considered the Full Federal Court’s decision in Singh elsewhere,[15] and it is not necessary for me to repeat here what I said on that occasion. It is necessary, however, to refer to two matters that are relevant to determining whether the existence of the 375A certificate gives rise to an arguable case of jurisdictional error.
[14] [2016] FCAFC 183
[15] CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [100]-[105]
The first matter is that on 29 May 2015 the applicant made a request to the Tribunal under s.362A of the Act for a copy of “the dept files and the TRIBUNAL FILES”.[16] The Tribunal responded by letter dated 1 June 2015 in which it identified documents to which the applicants were granted access.[17] The letter, however, referred to “3 unfolioed pages on” a Department file to which the Tribunal said the applicants would not be granted access. The letter stated:
The 3 unfolioed pages on department file … are excluded from release because they are subject to a certificate made by the department under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest.
[16] Exhibit CB2, page 6
[17] CB2, page 9
On the evidence before me, therefore, there is no doubt the Tribunal disclosed to the applicants the existence of the 375A certificate, and it did so well before 7 January 2016 when the applicants appeared before the Tribunal.[18]. That by itself distinguishes this case from Singh, and does so to such an extent as to lead me to conclude that it is not reasonably arguable that the reasoning in Singh applies to the circumstances of this case. That, in turn, leads me to conclude there is no arguable case that the 375A certificate in the circumstances of this case resulted in the Tribunal making a jurisdictional error.
[18] CB1, page 193
The second matter to note relates to the contents of what the Minister submits is the document that was covered by the 375A certificate. The Minister relied on an affidavit of Ms Dejean in which she identified, and exhibited to her affidavit, the document that was covered by the 375A certificate. An anonymous person prepared and provided the document to the Department of Immigration and Border Protection (Department). The document asserted the second applicant was working illegally at a building site. At the hearing before it, the Tribunal discussed with the applicants the Department’s having received an allegation that the second applicant was employed despite not having work rights. In its reasons for decision, however, the Tribunal, said it did not consider the information provided by the informant to be relevant to the issues before the Tribunal, and, therefore, said it placed no weight on the allegations concerning the second applicant.[19]
[19] CB1, page199, [14]
If I were satisfied that it is beyond argument that the document covered by the 375A certificate was the document that was exhibited to Ms Dejean’s affidavit, I would conclude that the Tribunal’s disclosing the substance of the document to the applicants, and its finding the document not to be relevant, would afford an additional reason for concluding there is no arguable case that Singh applies to the circumstances of the case before me. I cannot, however, be satisfied that the document exhibited to Ms Dejean’s affidavit is without doubt the document covered by the 375A certificate. The document exhibited to Ms Dejean’s affidavit is two pages, whereas the Tribunal’s letter dated 1 June 2015 referred to “3 unfolioed pages” being the subject of the 375A certificate.
Conclusion and disposition
I am not satisfied it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act. The applicants have given no reasonable or adequate explanation for their delay, the delay is not insubstantial, the ground of review stated in the application for review is not arguable, nothing the applicants said to me at the hearing disclosed any arguable case of jurisdictional error, and the issue of the 375A certificate in the circumstances of the case before me raises no arguable case of jurisdictional error.
I propose to order that the application for an order under s.477(2) of the Act be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 1 September 2017
2
5
4