Druett v Minister for Immigration

[2012] FMCA 568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRUETT v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 568

MIGRATION – MRT decision – review of refusal of spouse visa – Tribunal not satisfied as to mutual commitment – no jurisdictional error found – application dismissed.

MIGRATION – MRT jurisdiction – filing fee required with application – power to waive only one half – refusal to waive full fee – failure to pay any fee – Tribunal correctly found absence of jurisdiction.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5F, 5F(2), 338, 347, 347(1)(c)
Migration Regulations 1994 (Cth), regs.1.15A, 4.13, Sch.2 cll.309.211, 309.221

Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364
Khan v Minister for Immigration & Citizenship [2009] FCA 443
Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99

Applicant: GARRY KEITH DRUETT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 121 of 2012

Judgment of: Smith FM

Hearing date: 22 June 2012

Delivered at: Sydney

Delivered on: 22 June 2012

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr O Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,154. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 121 of 2012

GARRY KEITH DRUETT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This judgment explains why I am dismissing Mr Druett’s application for review of two decisions of the Tribunal.  The first decision affirmed the refusal of a partner residence visa to Ms Xu.  The second found the absence of jurisdiction in the Tribunal to review the refusal of a visitor’s visa to Ms Xu, due to a failure to pay a reduced filing fee. 

2. Mr Druett travelled to China in May 2010. While he was there he met Ms Xu in person for the first time, and attended a ceremony at which a marriage between him and Ms Xu was registered in Ms Xu’s home city in China on 7 May 2010.  They lived together in a hotel for some weeks and Mr Druett met her family.  On 21 May 2010, they attended the Australian Immigration Department Office in Shanghai, and had discussions with immigration officials.  The outcome of those discussions was that an application for a provisional spouse visa was withdrawn, and Ms Xu lodged an application to visit Australia as a tourist.  The application was completed ambiguously, as to whether Mr Druett accepted that he was her spouse at that time.  Mr Druett then returned to Australia alone, on 26 May 2010. 

3. On 31 May 2010, an officer of the Immigration Department in Shanghai refused Ms Xu’s visitor’s visa application, on the ground that the officer was not satisfied that it was her intention to only visit Australia, i.e. temporarily as a visitor.  No appeal was brought from that decision. 

4. On 18 August 2010, Ms Xu lodged an application for permanent residence in Australia as the spouse of Mr Druett. Under the scheme of the Migration Regulations, this application was required to be treated initially as an application for a temporary or provisional partner visa. The visa application forms were completed, including with a declaration signed by Mr Druett of his sponsorship, but again with some ambiguity whether he regarded himself as Ms Xu’s spouse.

5. Ms Xu was interviewed by officers of the Immigration Department at Shanghai on 2 November 2010. 

6. On 20 May 2011 a delegate for the Minister of Immigration decided to refuse the visa application. In reasons accompanying the decision, the officer referred to the relevant criteria and to cl.309.211 of Sch.2 of the Migration Regulations 1994 (Cth), which includes a time of application criterion that the applicant “is the spouse” of an Australian citizen.  Clause 309.221 requires that this also be established at time of decision. 

7. Section 5F of the Migration Act 1958 (Cth) defines “spouse”:

   5F     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. 

   Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists. 

8. The regulations made for the purposes of this section, contain in reg.1.15A mandatory considerations which decision‑makers in relation to this species of visa are required to consider when addressing this definition. 

9. In his statement of reasons, the delegate referred to the Department’s records of events at the Department’s office in Shanghai on 21 May 2010, and to statements made at that time and subsequently by Mr Druett showing some ambivalence whether he wished to sponsor Ms Xu to come to Australia as his wife.  The delegate said: 

   As such, I note that the information provided by parties to this application is often confused and contradictory.  However, I find there is significant doubt in the sponsor’s mind [Mr Druett] as to the bonafides of the relationship, and that there is little supporting information as to the claims of a current ongoing relationship. 

   I am not satisfied that this aspect of their relationship supports the existence of a genuine spouse relationship between them. 

   … I cannot be satisfied that the relationship between Ms Xu and Mr Druett is genuine and continuing at the present time. 

10. The delegate recorded a decision in the following terms:  

    I am not satisfied that Ms Xu meets the legal requirements of subregulations 309.211 and 309.221.  I therefore refuse the grant of a subclass 309 Provisional Partner visa to Ms Xu Li. 

11. Under ss.338 and 347 of the Migration Act, Mr Druett, not Ms Xu, had a right of application for merits review of the delegate’s decision by the Migration Review Tribunal. An application for that review was lodged on 21 June 2011. At that time, the Tribunal had power to waive the full filing fee which was otherwise required to accompany the application pursuant to s.347(1)(c). A decision to waive the full fee was made, and this decision was communicated to Mr Druett on 6 July 2011.

12. The Tribunal then proceeded to reconsider the decision of the delegate, and Mr Druett attended a hearing of the Tribunal on 14 October 2011 and gave evidence.  It seems also Ms Xu gave some evidence by telephone.  The Tribunal gives only a short summary of the evidence which was given, and neither party has tendered any more extensive evidence as to what was said. 

13. According to the Tribunal’s description, Mr Druett essentially confirmed the description of what had happened at the Shanghai office in May 2010 as recorded in the delegate’s decision.  The Tribunal then put to him that “the circumstances about the onset of the parties’ relationship and its progress to their marriage may be considered to indicate that the marriage was contrived, perhaps for the visa applicant [Ms Xu] to achieve an Australian migration outcome”.  The Tribunal pointed to some further circumstances that might also suggest this. 

14. According to the Tribunal, Mr Druett responded “by stating that at that time he was confused and not sure about his relationship with the visa applicant but he has found her to be nice and he hopes that she is not using him to migrate to Australia”.  Ms Xu told the Tribunal “that she married the review applicant because she loves him”. 

15. The Tribunal made a decision on 10 January 2012 to affirm the delegate’s decision.  The Tribunal recounted briefly the evidence before it, including what had been said at the hearing, and gave findings and reasons which addressed the statutory definition of spouse, in accordance with the time of application and time of decision criteria.  

16. The Tribunal identified the relevant paragraphs in s.5F(2), and also the list of relevant matters set out in reg.1.15A. It pointed to pertinent indicia in relation to these matters, and in particular discussed “the nature of the persons’ commitment to each other”.  It noted: 

    36.The visa applicant [Ms Xu] has essentially claimed that she sees her relationship with the review applicant [Mr Druett] as a long‑term one.  The review applicant has also tentatively made this claim.  The Tribunal does not accept this claim and finds that the parties’ marriage is a contrived marriage for the sole purpose of achieving an Australian migration outcome for the visa applicant.  … 

17. The Tribunal then explained that conclusion by reference to their statements over relevant periods, the circumstances of Mr Druett’s travel to China, and Mr Druett’s evidence to the Tribunal, which it said “indicates that even now, he is not sure about the genuineness of this relationship”. 

18. The Tribunal concluded: 

    37.For reasons discussed above, the Tribunal is not satisfied that at the time of application the visa applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

    38.For reasons discussed above, the Tribunal is not satisfied that at the time of application the visa applicant and the review applicant lived together or did not live separately and apart on a permanent basis. Accordingly, they do not meet the requirements of s.5F(2)(d) for a married relationship.

    39.For these reasons the Tribunal finds that at the time of application the visa applicant and review applicant were not in a married relationship within the meaning of s.5F(2) of the Act.

    40.The Tribunal therefore finds that at the time of the visa application the visa applicant was not the spouse, within the meaning of s.5F, of the review applicant, who is an Australian citizen and does not meet the requirements of cl.309.211(2) of Schedule 2 to the Regulations.

    41.The Tribunal finds therefore that the applicant does not meet the requirements of cl.309.211(2) of Schedule 2 to the Regulations.

    42.Given the above findings of the Tribunal, it was unnecessary for the Tribunal to assess whether the visa applicant was the spouse of the review applicant at the time of decision (cl.309.221 of Schedule 2 refers).

19. Mr Druett filed an application for judicial review of the Tribunal’s decision on 19 January 2012.  His application also asked the Court to review another decision made by the Tribunal which had been notified to him on 13 January 2012. 

20. In the second decision, a different Tribunal member had decided that the Tribunal did not have jurisdiction to review a decision which had been made by a Minister’s delegate on 28 October 2011, while the partner visa matter was pending in the Tribunal, to refuse to grant a sponsored visitor’s visa to Ms Xu.  The adverse decision as to the Tribunal’s jurisdiction turned upon Mr Druett’s failure to pay a filing fee.  I shall consider its correctness below, after first considering Mr Druett’s challenge to the Tribunal’s decision concerning the spouse visa review. 

21. I have carefully considered the Tribunal’s decision concerning Ms Xu’s spouse visa application, and all the evidence reproduced in the bundle of documents tendered by the Minister.  This does not appear to me to be the complete files of the Tribunal and Department.  However, on the material before me it appears to me that the Tribunal made a decision which the law allowed it to make, which was supported by logical reasons, and was supported by evidence which appears to have been before the Tribunal. 

22. In particular, in my opinion, the Tribunal’s adverse assessment of the existence of mutual commitment to a continuing marital relationship between Mr Druett and Ms Xu, was supported by the statements of Mr Druett to the Tribunal.  Mr Druett has made similar statements to me today, indicating that he still had some doubts about the genuineness of the marriage. 

23. On that basis, it appears to me that there is no legal flaw in the Tribunal’s reasoning which I can discern under principles of administrative law allowing this Court to set aside the Tribunal’s decision and to remit the matter for further consideration by the Tribunal. 

24. Mr Druett has filed a number of documents in the Court in support of his application to the Court, and I have read them all.  However, I do not think that he has identified any arguable jurisdictional error affecting the Tribunal’s decision on the partnership visa.  Indeed, overwhelmingly his submissions reflect his suspicions about the whole process in which the visa applications were made and decided.  It is also apparent that his thoughts have been influenced by his previous experiences in litigation, concerning other disputes with other private and government agencies.  He refers to these disputes in his documents he has filed, but those disputes and his continuing thoughts about them do not provide issues which I can decide in the present case. 

25. Taking into account all that Mr Druett has put before the Court in writing and today, I consider that the application for review of the spouse visa application should be dismissed. 

26. The application for review of the refusal of Ms Xu’s visitor’s visa application turns upon changes to regulations in relation to the waiver of filing fees, which took effect from 1 July 2011.  These amended Migration Regulation 4.13, so as to remove the previous power of the Tribunal fully to waive filing fees.  They substituted a power which is now expressed in the following terms: 

    4.13Tribunal review — fees and waiver 

    (1)Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,540. 

    …

    (4)If the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar, Deputy Registrar or officer may determine that the fee payable is 50% of the amount mentioned in subregulation (1).  

27. Mr Druett filed an application in his name for review of a decision to refuse to grant Ms Xu a visitor’s visa on 10 November 2011.  On the same date he filed a “Request for Fee Waiver/Reduction”.  On the information page of that request it indicated: 

    For applications for review lodged on or after 1 July 2011: 

    A full fee waiver is no longer available.  The application fee of $1540 is payable and may be reduced to $770 (or $770 refunded if the full fee has been paid) if the Tribunal is satisfied that payment of $1540 has caused, or is likely to cause, severe financial hardship. 

28. Mr Druett’s application was addressed by a person describing themselves as a Tribunal officer, presumably with the relevant delegation, in a letter dated 14 November 2011, which said: 

    FEE REDUCTION GRANTED – MR GARRY KEITH DRUETT 

    I am writing about your request for a 50% reduction of the $1540 application fee relating to your application for review in relation to a decision to refuse to grant a Sponsored (Visitor) (Class UL) visa. 

    I have assessed your request and have decided the fee should be reduced to $770. 

    You must now pay $770 of the application fee within 14 days of receiving this letter.  As this letter has been posted, you will be considered to have received this letter 7 working days after the date of the letter.  If $770 of the fee is not paid by the due date your application for review will be allocated to a Tribunal Member to determine whether you have made a valid application.  If you do not pay the fee, the Member may decide you have not made a valid application.  If your application is invalid, the Tribunal cannot review the decision. 

    The fee can be paid by cheque, money order, credit card (MasterCard or Visa) or EFTPOS at the Sydney or Melbourne Registries of the Tribunal or at the Adelaide, Brisbane or Perth Registries of the Administrative Appeals Tribunal. 

    If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 xxx xxx.  For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 xxx. 

29. Mr Druett responded to that letter on 23 November 2011: 

    I am writing regarding a denial of Natural Justice and the delay in or refusing to take clean hands to victims stitched up by Immigration [illegible] Doctors. 

    Your letter of 14/11/2011 MRT No xxxxxxx makes no sense for a review of a $120 consultation this is bad medicine in a nut shell what is the problem. 

30. The Tribunal officer responded on 28 November 2011, confirming that the Tribunal had reduced the filing fee and the previous advice as to time for paying the reduced fee.  The letter said: 

    …  You must now pay the $770 of the application fee by 07 December 2011.  If the $770 is not paid by the due date your application for review will be allocated to a Tribunal Member to determine whether you have made a valid application. 

    If you do not pay the fee, the Member may decide you have not made a valid application.  If your application is invalid, the Tribunal cannot review the decision.  … 

31. Mr Druett did not pay the reduced fee, nor any amount, and a Tribunal member addressed the Tribunal’s jurisdiction on 12 January 2012.  In a decision made on that day and notified to Mr Druett by letter dated 13 January 2012, the Tribunal member referred to the relevant Regulations about the required fees and fee reduction application. 

32. The Tribunal also referred to two authorities in the Federal Court which have addressed the consequences of a failure to pay a required filing fee.  In Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99, Lehane J addressed a provision which conditioned the jurisdiction of a previous migration review agency in the same language as does s.347(1)(c) of the present Migration Act, that is, a provision requiring an application for review to be “accompanied by the prescribed fee (if any)”.  His Honour considered a situation where no fee had been paid and there were no issues about waiver. He held that the requirement was mandatory, in the sense that compliance conditioned the jurisdiction of the Tribunal. His Honour’s judgment has been followed in relation to the present provisions of s.347 by Besanko J in Khan v Minister for Immigration & Citizenship [2009] FCA 443 at [17].

33. The second judgment was that of the Full Court in Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364. In this judgment, the Full Court addressed a tension in the Migration Act which still arises. On the one hand, the jurisdictional section imposes a mandatory condition on jurisdiction based on the payment of the prescribed fee within a limited period for applying for review, but on the other hand the Act allows regulations which provide for a discretion to waive the filing fee and allow a waiver decision to be made after the expiry of the period for application for review. Their Honours accepted an interpretation that: “the applicant for review must do something about the prescribed fee within the prescribed period, but … it is sufficient that the applicant for review has sought waiver of the fee” (see [50]). They said:

    51In our view this argument should be accepted. The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.

1. In the present case, the Tribunal said: 

   12.Mr Druett asked the Tribunal to reduce the prescribed application fee on 10 November 2011, being before the prescribed period expired.  An authorised Tribunal officer decided on 14 November 2011 to grant the request for fee reduction because the officer was satisfied that the payment of the fee would cause Mr Druett, or is likely to cause him, severe financial hardship.  The Tribunal wrote to Mr Druett on 14 November 2011 advising him of this decision and requesting that the reduced application fee ($770) be paid within 14 days of receiving the Tribunal’s letter.  This made the last date for payment of the fee 7 December 2011.  The applicant was informed that if the fee was not paid, the Tribunal may decide that the review application was invalid. 

   13.The Tribunal has considered the applicant’s submission received on 23 November 2011 but nevertheless finds that the reduced application fee has not been paid and therefore the review application is not a valid application.  On 28 November 2011 the Tribunal wrote to the applicant responding to the applicant’s submission and reiterated that the last payment date for the reduced application fee was 7 December 2011. 

   14.The Tribunal finds that the applicant has been given a reasonable period to pay the prescribed application fee since being notified of the fee reduction decision.  As the prescribed application fee has not been paid the application for review is not a valid application and the Tribunal has no jurisdiction in this matter. 

2. In my opinion, the reasoning of the Tribunal member was consistent with the Full Court’s judgment in Braganza, and I would arrive at the same conclusions of fact and law. 

3. I am therefore not satisfied that the Tribunal made an incorrect decision when declining jurisdiction to review the refusal of Ms Xu’s visitor’s visa application.  The application before me in this respect should also be dismissed. 

4. Mr Druett’s submissions to the Court did not come to grips with the relevant regulations and judicial authorities which were cited by the Tribunal.  I am not critical of him not doing that.  However, his essential submission was that it would be fair to Ms Xu to allow her to visit Australia as a visitor.  He pointed to various circumstances, including her wealth and connections with business and family in China, to suggest that a different interpretation might now be arrived at as to the genuineness of her intention to visit Australia only as a visitor. 

5. Whether such conclusions might be drawn is not a matter which I can myself decide.  As counsel for the Minister pointed out, it is open to Ms Xu again to seek to test her entitlement to a visitor’s visa by lodging another visitor visa application together with whatever evidence she can marshal to persuade the delegates of the Minister that she can satisfy the criteria for a visitor’s visa. 

6. Mr Druett made general complaints about the decision making of the Department of Immigration in relation to the two matters which have been brought before me, suggesting that he and Ms Xu had been put to expense and that the delays had given rise to losses.  Whether this is the case is unclear to me.  On the documents before me, I would not myself be critical of the administrative processes shown in the present papers before me. 

7. Mr Druett has many suspicions as to the motivations for adverse decisions made concerning him and his family, and he will undoubtedly remain unhappy with my judgment, but unfortunately my powers are limited to investigating the legality of the two decisions which he has brought for judicial review today. 

8. For the above reasons, I am not satisfied that there are any grounds for giving him relief which I have power to grant. 

9. In relation to costs, the Minister seeks an award of party/party costs in the sum of $5,154. 

10. For reasons which would be obvious to anyone reading the papers which Mr Druett has filed in this case, I have had concerns whether Mr Druett has ever appreciated the risk he is facing in relation to orders for costs.  A similar concern has influenced some of the previous judicial officers who have addressed litigation brought by Mr Druett, both in the Federal Court and the Supreme Court.  However, Mr Druett has been a frequent litigator, and I consider that he now does appreciate that the Courts have power to order costs where his litigation is dismissed, and that they normally do so.  He did not seek any special exception to the normal rule today. 

11. Weighing up all the circumstances of the present litigation, I have concluded that the normal principle should be given effect, and that costs should follow the event.  The costs sought by the Minister are less than the scale under the Federal Magistrates Court Rules 2001 (Cth), and I shall therefore include a costs order. I do however recommend to the Minister that he consider Mr Druett’s situation carefully before deciding whether to seek to recover the costs from Mr Druett.

I certify that the preceding forty‑four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  9 July 2012