Gebreslassie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gebreslassie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1854

File number(s):

MLG 3668 of 2018

Judgment of:

JUDGE MERCURI

Date of judgment:

12 August 2021

Catchwords:

MIGRATION – application filed 31 days out of time – application for extension of time – whether an extension of time is in the interests of justice – whether an extension of time would cause any prejudice to the Minister – whether there is any merit to the grounds of review on an impressionistic assessment – application for extension of time granted – application for judicial review – Partner (subclass 309/100) visa – Partner (Provisional) (subclass 309) visa – where there was jurisdictional error – whether the Administrative Appeals Tribunal considered all evidence put forward – impermissible merits review – substantive application dismissed – order for costs

Legislation:

Migration Act 1958 (Cth), ss 477(1), 477(2)

Migration Regulations 1994 (Cth), cl 309.311, 309.321, reg 1.05A(1), 1.12(1)(e)(i), 1.12(1)(e)(iii)

Cases cited:

DHX17v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

Minister for Immigration v Jia Legeng (2001) 178 ALR 421

MZABP v Minister for Immigration and Border Protection  [2015] FCA 1391

Number of paragraphs:

64

Date of last submission/s:

16 June 2021

Date of hearing:

16 June 2021

Place:

Melbourne

Solicitor for the Applicant:

The applicant appearing on his own behalf

Solicitor for the Respondents:

Ms Roeger
Australian Government Solicitor

ORDERS

MLG 3668 of 2018

BETWEEN:

TEWOLDE TSEGABRHAN GEBRESLASSIE

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MERCURI
DATE OF ORDER:	12 AUGUST 2021

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time is granted.

2.The applicant’s application filed 3 December 2018 is dismissed.

3.The applicant pay the first respondent’s costs in a sum to be fixed.

REASONS FOR JUDGMENT

JUDGE MERCURI:

INTRODUCTION

1. Before the court are, in essence, two applications.  The first is an application for an extension of time filed by the applicant on 3 December 2018 (‘extension of time application’).  If the extension of time is granted, the court must then consider the substantive application (‘the substantive application’) for judicial review of a decision of the Administrative Appeals Tribunal (‘AAT’) affirming a decision to refuse a visa by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’).  The matter was listed before me, to determine these matters, sequentially.  Of course, the merits of the application only fall to be considered if the extension of time is granted.

2. For the following reasons, I am satisfied that it is in the interests of justice for the extension of time application to be granted in the circumstances of this case. 

3. However, also for the reasons which follow, I find that the substantive application ought to be dismissed with costs.

   BACKGROUND

4. By way of background, the applicant is an Australian citizen and sponsored the primary visa applicant for a Partner (Subclass 309/100) visa on 18 November 2014 (CB 13 – 42).  The applicant’s application for a Partner visa also included two dependent visa applicants (‘the visa applicants’) who were the primary visa applicant’s nephews (CB 16). 

5. On 10 February 2016, a delegate of the Minister granted the primary visa applicant a Partner (Provisional) (subclass 309) visa. However, also on that date, the delegate refused to grant a visa to the visa applicants on the basis that they did not satisfy clause 309.311 or clause 309.321 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).  In essence, the delegate was not satisfied that the visa applicants were ‘members of the family unit’ of the primary visa applicant. 

6. On 17 March 2016, the applicant, in his capacity as sponsor, applied to the Tribunal for a review of the delegate’s decision in relation to the visa applicants (CB 215 – 225).  On 28 August 2018, the applicant attended a hearing before the Tribunal to give evidence and present arguments in support of the visa applicant’s application. 

7. On 28 September 2018, the Tribunal affirmed the delegate’s decision (CB 259 – 271).

   CONSIDERATION

   Extension of time application

8. Pursuant to section 477(1) of the Migration Act 1958 (Cth) (‘the Act’), the time prescribed for the filing of an application for judicial review is 35 days from the date of the Tribunal’s decision. As such, the applicant was required by section 477(1) to have filed his application by 2 November 2018. Instead, the applicant filed his application for judicial review on 3 December 2018, some 31 days outside the prescribed time limit.

9. Pursuant to section 477(2) of the Act the court has the power to extend the 35 date time limit where is satisfied that it is necessary in the interests of the administration of justice to do so. There are no prescribed factors which must be considered in determining whether or not to exercise the court’s discretion. However, some relevant factors include:

   (a)the length of delay;

   (b)the explanation for such delay;

   (c)any prejudice to the Minister of granting extension; and

   (d)whether there is any merit to the grounds raised by the applicant.

10. In this case, the applicant, in his application for an extension of time filed 3 December 2018 identified the following as reasons for the request for an extension of time:

    1.Lack of familiarity with the Australian legal system.

    2.Lack of funds, uncertainty as to what is involved in pursuing a judicial review application

    3.Language barrier, not competed (sic) in English in order to read and act on a timely manner.

11. In addition, the applicant filed an affidavit on 3 December 2018, the applicant further stated:

    … I missed the deadline for varied reasons that includes my lack of familiarity with the Australian legal system and lack of funds.

12. The Minister opposes the extension of time application. 

13. On 12 October 2020, I note that orders were made by Registrar Carlton for, among other things, the applicant to file and serve any amended application with proper particulars, any supplementary court book and any written submissions.  The applicant has not filed any such material.

14. The Minister has filed a court book and written submissions as ordered by Registrar Carlton. 

15. The Minister submits that the delay, whilst not inordinate is not insubstantial in so far as it is almost double the prescribed time provided for such an application to be made.  Moreover, the Minister further submits that the explanation offered by the applicant for the delay is inadequate.

16. As to the applicant’s explanation for the delay, I have some sympathy for the applicant whose first language is not English and who does not have a level of familiarity with the Australian legal system.  These factors alone, however, would generally not justify the extension of a time limit within which to bring a judicial review application, particularly in circumstances where the applicant has been involved in this process for some time, having sought merits review of the delegate’s decision before the Tribunal and was provided with information about the time limits which apply.  Moreover, the applicant has not put any evidence before the court which supports his assertion that he had insufficient funds to obtain legal advice. 

17. However, even if the explanation for the delay is insufficient in and of itself, there are other factors to which the court should also have regard, in determining whether it is in the interests of justice to grant the extension of time sought.  The merits of the claim is one such factor.  It may well be for example, that the merits disclosed in the grounds of review are such that the extension of time ought to be granted.  Particularly in a case such as this where the delay, whilst not insignificant, is not exorbitant. 

18. However, in considering the merits of the applicant’s grounds of review, it is well settled that the court is required to adopt no more than an ‘impressionistic’ assessment of the grounds of review advanced by the applicant at this early stage.  The question before the court is whether the grounds are ‘‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63] (‘MZABP’)).  However as her Honour Justice Mortimer went on to say in MZABP at [63]:

    Whichever description is chosen the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning merits review decision.

19. At paragraph [62] of MZABP and affirmed in DHX17v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [68], [76], Mortimer J noted:

    … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospect of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage.  There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued.  Rather, the certainty or confidence the judge may have about successful outcome is because the grounds on their face, and without detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merits as a consideration in the discretion to extend time. 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). (emphasis added)

20. It is clear from these comments that what the court is required to do at the preliminary stage of determining whether to extend time, is to apply an impressionistic assessment of whether the grounds of review advanced by the applicant have reasonable prospect of success (or other similar iterations of this term).  The court is not required to effectively undertake an assessment of those grounds on a final basis to determine whether the applicant’s application would in fact ultimately succeed.

21. Accepting that this is the appropriate test, it is submitted for the Minister that even at a ‘reasonably impressionistic level’, the applicant’s grounds are without merit.  The Minister submits that the applicant’s grounds when properly considered, simply reflect a dissatisfaction with the Tribunal’s decision and invite the court to undertake impermissible merits review.

    Impressionistic assessment of the applicant’s grounds of review

22. Turning then to the question of what grounds of review the applicant raises.

23. In his application, the applicant simply raises one ground of review, namely:

    1.The Administrative Appeals tribunal decision is affected by jurisdictional error.

24. In the absence of any particulars, and in circumstances where the applicant was given the opportunity to file an amended application with proper particulars, it may well be said that this does not, even at a reasonably impressionistic level does not rise to the requisite level to justify the granting of an extension of time.

25. The Minister, however, properly concedes that the applicant’s affidavit does also raise other matters which, properly read, give rise to more specific grounds of review.  The Minister has summarised those proposed grounds as follows:

    24.1the Tribunal failed to consider that obtaining legal custody for children is not mandatory in Ethiopia and it is culturally acceptable to care for a relative’s children without legal documentation;

    24.2the Tribunal was incorrect to take into account the date legal custody was obtained, as this was irrelevant;

    24.3the Tribunal failed to inform itself on cultural practices regarding cultural practices regarding custody and legal documentation in Ethiopia;

    24.4the Tribunal failed to consider the evidence before it that the primary visa applicant raised the visa applicants since 2011, and the explanation as to why legal custody was not obtained in 2011;

    24.5the Tribunal made a pre-judgement about whether a young female in Ethiopia would look after a younger child where there is a small age gap;

    24.6the Tribunal failed to take into account difficulties with obtaining a legitimate missing person document in Sudan;

    24.7the Tribunal did not take into account the Addis Zemen magazine of 9 November 2014 and court order from Tigray National Regional State as evidence of the primary visa applicant’s father’s disappearance.

26. I agree that this is a fair summary of the matters raised by the applicant.

27. The Minister addresses each of these grounds of review in the filed written submissions.  It was conceded that the Minister’s written submissions went into much more detail than would be appropriate for the threshold assessment of the merits required for the purposes of an extension of time application.  Understandably, the written submissions were prepared on the basis that they addressed both alternative positions. Namely, either there was no merit and therefore the extension of time ought not to be granted, or alternatively, if there was a valid basis to grant the extension of time, the written submissions addressed the substantive grounds on a more detailed basis. 

28. The Minister’s response to many of the grounds of review, asserts that the findings made by the Tribunal were reasonably open on the evidence before it and therefore do not evidence jurisdictional error.  To determine whether this is the case or not, however, requires an analysis of the Tribunal’s reasons and the evidence upon which those reasons were based. This analysis would require the court to do more than undertake a reasonably impressionistic assessment of the merits of the grounds of review. 

29. In those circumstances, and having regard to the length of the delay in this case, which is not extreme, on balance, I am satisfied that it is in the interests of justice for an extension of time to be granted.  In coming to this view, I have also had regard to the concession, properly made, by the Minister of an absence of any prejudice to him in the granting of the extension.

    Substantive application

30. Having determined that it is appropriate to make an order extending the time for the applicant’s application to allow the applicant’s application to proceed, I now turn to consider the substantive application on its merits.

    Tribunal’s decision

31. Before addressing the grounds of review raised by the applicant, I will summarise the Tribunal’s decision (CB 259 – 271).

32. At [2] – [4] of the Tribunal’s decision record, the Tribunal set out the nature of the applications before it. As noted at [3], whilst the delegate granted a Partner visa to the primary applicant, on the basis of her relationship with the sponsor, the delegate refused to grant a visa to the secondary applicants. This refusal was based on an assessment that the secondary applicants were not found to be members of the family unit of the primary applicant as defined in regulation 1.12 of the Regulations. The Tribunal concluded that the delegate’s decision ought to be affirmed.

33. At [8] the Tribunal noted that the primary applicant claimed that the secondary applicants were the sons of her sister.

34. At [9] the Tribunal summarised the conditions that needed to be satisfied for the secondary applicants to be considered to be dependents of the primary applicant.  The Tribunal then set out the evidence given by the primary applicant and the review applicant (i.e. the primary applicant’s husband) about the secondary applicant’s reliance upon the primary applicant for support at [11] – [26].  At [27], the Tribunal set out the evidence regarding the primary applicant’s father and his disappearance after he left for Sudan.

35. Relevantly at [28] the Tribunal said:

    The Tribunal noted that the primary applicant applied for the Partner visa in November 2014.  The Tribunal noted that the primary applicant did not get custody of the visa applicants until January 2015.  The Tribunal asked why there was such a long delay if they were genuinely dependent upon the primary applicant.  The review applicant said in Ethiopia anyone, including a neighbour can raise a child without legal authority.  The review applicant said that there was no need for the primary applicant to obtain legal authority.  The review applicant said that they commenced the process of having custody granted when they commenced the process of applying for a Partner visa.  The primary applicant agreed with this evidence, stating that originally she had no intention to ever migrate to Australia so there was no need to obtain legal custody of the visa applicants until that point.

36. At [35] the Tribunal raised with the primary applicant that she was only a few years older than the older secondary applicant and asked about whether it was customary for a young woman in Ethiopia to ‘adopt’ or have custody of a male only a few years younger.  The Tribunal then sets out the review applicant’s response.

37. The Tribunal further explored the nature of the relationship between the primary applicant and the secondary applicants and the capacity of the secondary applicants to care for themselves given their ages at [36] – [38].  At [39] the Tribunal explored what corroborative evidence the primary applicant might have regarding the secondary applicants’ living arrangements prior to 2014. 

38. At [40] – [42] the Tribunal further explored the nature of the support provided by the primary applicant to the secondary applicants. 

39. From [44] onwards, the Tribunal then sets out its findings.  Relevantly at [47] the Tribunal accepts that the secondary applicants are relatives of the primary applicant and that neither of the applicants has a spouse, therefore meeting the requirements of regulation 1.12(1)(e)(i).

40. At [51] the Tribunal discussed the claims regarding the disappearance of the primary applicant’s father in 2011 and noted that no corroborative evidence had been provided in support of this claim.

41. At [52] the Tribunal considered the claims of financial support to the secondary applicants.  Ultimately, the Tribunal, whilst accepting that financial support had been provided, did not accept that there was sufficient evidence to conclude that the secondary applicants relied wholly or substantially on the primary applicant to meet their basic needs for food, clothing and shelter.  Moreover, the Tribunal was not satisfied that the primary applicant’s father was missing or deceased and that the secondary applicants were in fact not in his care.

42. At [55] to [57], the Tribunal then considered whether the secondary applicants were dependent children of the primary applicant.  In this context, the Tribunal had regard to the concept of ‘formal adoption’ and the custody documentation provided by the primary applicant.  Relevantly, at [57] the Tribunal concluded that:

    …on the evidence before it, the Tribunal is of the opinion that the application for custody was made entirely for migration purposes. … Given the lack of corroborative evidence of the claimed relationship of dependency between the visa applicants and the primary applicant, the Tribunal give the granting of legal custody little positive weight in determining a claimed dependent relationship.

1. At [58] to [59], the Tribunal concluded, on the evidence before it, that the secondary applicants were not legally adopted at the time of the application.  The Tribunal however, acknowledged and went on to consider the concept of informal adoption at [60] to [64].

2. At [66] the Tribunal considered the secondary applicants’ capacity to support themselves, noting that the older one was, at the time of the decision, almost 22 years of age and the fact that the primary applicant is only two years older.  The Tribunal went on to consider the nature of support provided at [67] and [70] and again stated that it was not satisfied that the primary applicant was providing support for the secondary applicants’ basic needs for food, clothing and shelter although it did accept that the primary applicant was providing some financial support to the secondary applicants.

3. At [72], the Tribunal concluded that the secondary applicants were not dependent upon the primary applicant as required by regulation 1.05A(1) and at [73] that the applicant also failed to meet the requirements of regulation 1.12(1)(e)(iii).

4. Finally at [75] the Tribunal noted that clause 309.311 required the secondary applicant to meet the relevant requirements at the time of application, namely as at 23 December 2014. It concluded that this requirement was not met at the point in time.

5. For each of these reasons, the Tribunal concluded that the secondary applicants did not satisfy the criteria for the grant of the visa and therefore affirmed the delegate’s decision under review.

   Grounds of review

   Formal custody orders in Ethiopia

6. The first complaint raised by the applicants in the affidavit filed 3 December 2018, relates to the Tribunal’s consideration of the process around the primary applicant seeking formal custody orders.  Put at its highest, the applicant complains that the Tribunal:

   (a)failed to consider that in Ethiopia it is culturally acceptable for relatives to care for children without legal documentation and therefore legal custody is not mandatory in Ethiopia;

   (b)took into account the date on which legal custody was granted and this was irrelevant; and

   (c)failed to inform itself and have regard to cultural practices in relation to custody issues in Ethiopia.

7. It is clear from a fair reading of the Tribunal’s reasons at [57] that it acknowledged the applicant’s submission that formal adoption or custody processes are relatively unimportant in Ethiopia. I find that the Tribunal did have regard to this factor.  It ultimately did not accept that this factor explained the delay in the primary applicants seeking a custody order.

8. As to the date on which legal custody was granted, it is also clear from a fair reading of [57] that the issue of concern for the Tribunal was the inconsistency between the assertion that the primary applicant had no interest in formalising the custody arrangements earlier as she had no interest in emigrating and the fact that the parties met in 2013 and decided to marry in April 2014 in circumstances where the sponsor was an Australian citizen.   This was compounded by the absence of corroborative evidence that the secondary applicants were dependents of the primary applicant since 2011.  It is clear from a fair reading of the Tribunal’s reasons, that it did have regard to the information put by the applicants regarding cultural practices in Ethiopia about custody arrangements, did not accept the applicant’s explanation for the delay in obtaining formal custody documentation, and therefore did not take into account any irrelevant considerations. The Tribunal therefore did take into account all relevant considerations.

9. Ultimately, the applicant’s complaint in this regard simply seeks impermissible merits review and does not identify any jurisdictional error.

   The primary applicant’s support for the secondary applicants

10. The applicant’s second complaint is that the Tribunal failed to consider evidence put forward about the primary applicant’s support for the secondary applicants.  It is clear from a fair reading of the Tribunal’s reasons from [10] to [43] that it was aware of the applicant’s submissions and evidence in this regard.  Moreover, it is clear from a fair reading of the Tribunal’s reasons that it did have regard to and accepted that the primary applicant (and the sponsor) provided some support, including financial and other support, to the secondary applicants.  However, for reasons set out, it did not accept that the secondary applicants relied solely or substantially on the primary applicant. The Tribunal’s analysis in this regard is particularly set out at [51] and [52] of the decision record. 

11. It is also clear from a fair reading of the Tribunal’s reasons at [51] that it was troubled by the lack of evidence to support the assertion that the primary applicant’s father disappeared in 2011 and consequently the secondary applicants had relied upon the primary applicant since that time. The Tribunal was also troubled by the absence of any other corroborative evidence to support the primary applicant’s assertion that the secondary applicants had been in her care since 2011.

12. The Tribunal considered the material before it and the conclusions reached were open on the evidence.  This complaint does not give rise to any jurisdictional error and again, the complaint does little more than invite impermissible merits review.

    Older relatives taking care of younger relatives

13. The applicant also complains that the Tribunal ‘pre-judged’ the question of whether a young female would have taken on the care of two young males, one of whom was only two years her junior.  It is clear from a fair reading of the Tribunal’s reasons, in particular at [36] about the cultural practice in Ethiopia for an older relative to take the care of younger relatives where no one else was available, including a young female taking on the care of young males.

14. At [63] the Tribunal sets out its analysis of this evidence. It referred to country information which states that it was not uncommon in Ethiopia for minors to be taken into the custody of older relatives or neighbours in some circumstances.  However, in this case, it went on to say:

    …The primary applicant and review applicant have claimed in oral evidence that there is no family member or relative to do this but the Tribunal is not convinced of this assertion, particularly given the very limited corroborative evidence they have provided of this support at the time of application  Furthermore, given the Tribunal is not satisfied on the evidence before it that the visa applicants are without local family assistance in Ethiopia, the Tribunal is not satisfied that the visa applicants were reliant on the primary applicant for their basic needs at the time of application.

15. These findings were open to the Tribunal on the evidence before it and do not disclose any jurisdictional error.  Moreover, I accept the Minister’s submission that to the extent that the applicant’s complaint alleges some bias on the part of the Tribunal, actual or apprehended, such an allegation would need to be distinctly made and clearly proven (see Minister for Immigration v Jia Legeng (2001) 178 ALR 421).

16. This complaint does not give rise to any jurisdictional error.

    Difficulty of obtaining documents in Sudan

17. The applicant further complains that the Tribunal failed to take into account the practical difficulty of obtaining documents in Sudan.  It is clear from the Tribunal’s reasons that this factor was considered.  Ultimately, however, it did not overcome the concerns which the Tribunal had about the lack of corroborative evidence as to the assertion that the secondary applicants had been in the care of the primary applicant since 2011.  The finding by the Tribunal that it was not satisfied that the secondary applicants did not have local family assistance in Ethiopia.  This finding was reasonably open on the evidence. 

18. This concern does not give rise to a jurisdictional error.  Again, this complaint does little more than seek impermissible merits review.

    Disappearance of the primary applicant’s father

19. The applicants further claim that the Tribunal did not consider evidence before it about the disappearance of the primary applicant’s father.  The Tribunal did note that there was some evidence in the form of a magazine article and a court order.  However, it was not satisfied on the basis of this evidence alone.  Again, this conclusion was reasonably open on the evidence before the Tribunal.

20. This complaint again does little more than seek to take issue with the conclusions reached by the Tribunal and seek impermissible merits review.  It does not give rise to or disclose any jurisdictional error.

    CONCLUSION

21. For each of these reasons, the applicant’s application does not give rise to a finding of jurisdictional error. 

22. I therefore dismiss the application with costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Mercuri.

Associate:  

Dated:       12 August 2021