Hossam v Minister for Immigration and Anor
[2016] FCCA 98
•23 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSSAM v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 98 |
| Catchwords: MIGRATION – Application for Partner (UK) visa – review of decision of the Migration Review Tribunal – whether the Tribunal failed to notify the applicant of a hearing date – whether misconduct of the applicant’s authorised recipient should have been taken into consideration by the Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359, 359A, 359B, 359C, 360, 363A, 379A, 379C, 379G, 477 |
| Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40 Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 SZNZI v Minister for Immigration [2010] FMCA 57 Wie v Minister for Immigration and Border Protection (2015) 90 ALJR 213; [2015] HCA 51 |
| Applicant: | HASSAN MOHAMED HOSSAMELDIN HOSSAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 524 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 December 2015 |
| Date of Last Submission: | 11 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Ms N. Linkenbagh, Dina Lawyers |
| Solicitors for the Respondents: | Ms N. Blake, Clayton Utz |
ORDERS
The application be dismissed
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 524 of 2015
| HASSAN MOHAMED HOSSAMELDIN HOSSAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Egypt who applied for a Partner (Temporary) (Class UK) visa on 6 March 2012. His application for a partner visa was rejected by a delegate of the first respondent on 3 January 2014. The Refugee Review Tribunal[1] affirmed the decision of the delegate to refuse to the grant the applicant a visa on 22 January 2015.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The applicant now wishes to seek judicial review of the Tribunal’s decision under s.476 of the Migration Act 1958 (Cth). An application under that provision must be made within 35 days of the date of the decision (s.477(1)). In this case, the date of the decision was 22 January 2015 (sub-s.477(3)(d)). That means that the application had to be made by 26 February 2015. The application was not made until 4 March 2015.
Extension of time
This Court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if:
…
a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
…
Although the extension of time was initially opposed by the Minister, in supplementary submissions filed on 4 December 2015, the objection was withdrawn. I made an order under s.477(2) of the Act extending the period within which these proceedings may be commenced to 4 March 2015. I detail my reasons for making the extension below.
In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):
[11]The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
The delay in bringing these proceedings before the Court was 4 days. Further, there was no issue that the applicant had a reasonable excuse for the delay, being that the applicant became aware of the Tribunal’s decision after the fact and was seeking legal advice.
On the basis of those facts, I agree that there was a reasonable excuse for the minor delay in applying to this Court and granted the extension of time. Furthermore, the grounds of the application require some careful consideration of the Tribunal’s decision and I therefore considered that it was in the interests of the administration of justice to make the order extending time.
Background
The applicant applied for a Partner (Temporary) (Class UK)(Subclass 820) visa and a Partner (Residence) (Class BS)(Subclass 801) visa on 6 March 2012. In order to be granted either of these visas, the applicant had to meet the essential criteria set out in cl.820.211 of the Migration Regulations 1994 (Cth).
Relevantly, the applicant had to establish that, both at the time of the application and the time of the decision, he was the spouse of an Australian citizen. “Spouse” is a term defined by the Regulations to require, amongst other things, that the two people are in a relationship that is genuine and continuing: s.5F. If, at the time of the decision, the relationship between the applicant sponsor has ceased, the applicant relevantly had to establish that he had suffered family violence committed by the sponsor.
The applicant’s sponsor was Ms Awat Akbar. In early 2013 the sponsor withdrew her sponsorship and informed the Department that she and the applicant were no longer in a relationship. The Department informed the applicant of this and invited him to respond.
On 12 April 2013 the Department received information from the applicant’s authorised recipient, Toufic Laba Sarkis, enclosing a statutory declaration of a clinical psychologist who had been treating the applicant. This was provided in support of the contention that the applicant had suffered family violence from the sponsor.
The delegate of the Minister refused to grant the applicant a partner visa because she was not satisfied that the applicant was in a relevant relationship with the sponsor or that that he had suffered family violence by his spouse.
The applicant applied to the Tribunal for review of the decision. In the application of appeal, the applicant listed Mr Laba Sarkis as the authorised recipient and included his email and postal address for correspondence.
On 23 December 2014 the Tribunal sent Mr Laba Sarkis by email an invitation to comment or respondent on information and initiation to attend a hearing in relation to the decision under review. The particulars of the information in the letter attached to the email were:
Confidential information provided to the Department which indicates that your claimed spouse relationship is actually contrived and was purely a business arrangement.
…
Information provided to the Department by your former sponsor indicating she had withdrawn as your sponsoring spouse and had never lived with you.
On 6 January 2015, Mr Laba Sarkis sent an email to the Tribunal indicating that he had not been able to get in contact with the applicant and was therefore not in a position to respond to the Tribunal’s invitation.
The Tribunal did not receive a response from the applicant and on 22 January 2015 the Tribunal proceeded to make a decision without a hearing. The Tribunal made its decision to affirm the decision of the delegate to refuse to grant the applicant a partner visa.
The Tribunal’s decision
The Tribunal found that the applicant was not a spouse of his sponsor at the time of application and so did not meet the criteria for the visa.
The Tribunal’s reasons for this conclusion included:
-there was no evidence in regards to the financial aspects of the relationship;
-there was very little evidence available of the parties’ household arrangements;
-there were no supporting declarations from friends of the sponsor or photographic evidence to show social aspects of the relationship;
-the withdrawal of the sponsoring spouse’s sponsorship; and
-evidence that the relationship between the sponsoring spouse and the applicant was a “business arrangement”.
The Tribunal reviewed the personal statement that was submitted with the application by a friend of the applicant and his sponsor. On this evidence however the Tribunal held:
[15] … the Tribunal gives these documents little weight in view of the fact that the sponsor has withdrawn her sponsorship of the applicant and claimed they never lived together. The Tribunal observes that there are no supporting declarations from friends of the sponsor. Furthermore, there is no photographic evidence of the parties representing themselves to other people as being married to each other or planning and undertaking joint social activities.
The Tribunal gave great weight to the information received from the sponsoring spouse declaring that she was withdrawing her sponsorship of the applicant and that she had never lived with the applicant. Further, the Tribunal was aware of confidential information which indicated that the relationship between the applicant and sponsor was a business arrangement.
The Tribunal set out its findings as follows:
[18]… the Tribunal is not satisfied that the applicant and sponsor were living together and had a mutual commitment to a shared life to the exclusion of all others and that their relationship was genuine and continuing at the time of application.
[19] Given these findings, the Tribunal is not satisfied that at the time the visa application was made the parties were in a spousal relationship pursuant to Regulation 1.15A. Therefore, the applicant does not meet cl.820.211(2)(a) and s.5F(2) of the Act.
The Tribunal also addressed the applicant’s claims of having suffered from domestic violence. The Tribunal held that as the applicant’s spouse was found to not be his sponsoring spouse at the time of the application, the domestic violence provisions and criteria in sub-cl.820.211(3)(b)(i)(A) could not be satisfied.
The Tribunal affirmed the decision of the delegate to refuse to grant the applicant a partner visa.
Consideration
The applicant filed an amended application with one ground and twelve particulars. The ground of the application is that the Tribunal’s decision was affected by jurisdictional error as it was not a privative clause decision under s.474(2) of the Act. The twelve particulars of the ground are as follows:
(1)The Applicant was denied natural justice and procedural fairness in the manner in which his Application was dealt with by the Tribunal in that he was denied the right to be heard in person in response to adverse information contained in written material before the Tribunal.
(2)The Tribunal proceeded to make an adverse decision against the Applicant when it was aware that he had not received notice of the Hearing Date and further, it refused to reconsidered its decision after the Applicant confirmed that fact.
(3)It was unfair to the Applicant that notice of the Hearing Date was given by email on 23 December 2014 when it could reasonably be expected that it would not be brought to his attention until after the Christmas Holiday period and therefore, even if he had received the Notice, the actual period of time available to prepared for the Hearing was truncated.
(4)It was unfair to the Applicant that notice to respond to information by 6 January 2015 was given by email on 23 December 2014 when it could reasonably be expected that it would not be brought to his attention until after the Christmas Holiday period and therefore, even if he had received the Notice, the actual period of time available to prepare responses was truncated.
(5)The Applicant lodged his Application for Review of the decision of The Department of Border Protection to refuse the Applicant a Partner Visa with the Tribunal on 24 January 2014.
(6) The Tribunal affirmed the Decision on 23 January 2015 without giving a further opportunity to the Applicant to be heard in circumstances where it knew that he did not have actual notice of the date.
(7)The Reasons for Decision state that the applicant did not reply to an invitation said to have been given on 23 December 2014.
(8)The applicant had no knowledge of the invitation said to have been given on 23 December 2014.
(9)Mr Toufic Laba Sarkis the Migration Agent instructed by the Applicant was overseas and failed to inform the Applicant of the Hearing date.
(10)The notice period included the Christmas holiday period.
(11)Mr Sarkis posted the Decision to the home address of the Applicant in early February 2015. That was the first the Applicant knew of the Hearing and Decision and he had no opportunity to attend and be heard at the Hearing.
(12)There has been a denial of Natural Justice to the applicant in that he did not have the opportunity to be heard before his Application was refused.
The issue central in the application is whether the Tribunal’s failure to notify the applicant directly of the invitation to attend a hearing, and comment on information and the fact that it proceeded to make a decision without a hearing, amounted to jurisdictional error.
Section 359A(1) of the Act requires the Tribunal to give the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. Section 359B(2) provides that where an invitation is given under s.359A, the comments on or response to the information must be given within the period specified in the invitation.
The consequence of the failure to respond or comment within the specified period is provided by s.359C(2) namely, that the Tribunal may make a decision on review without taking any further action to obtain the applicant’s views on information.
Section 363A provides that:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The combined effect of these provisions is, that where the Tribunal invites an applicant to comment on or respond to or provide information in accordance with ss.359 or 359A of the Act and, he or she fails to do so within the required time, the Tribunal does not have the power to hold an oral hearing and loses the entitlement to a hearing: Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40. Neither the applicant nor his authorised recipient responded to or commented on the information in the Tribunal’s invitation and so the Tribunal was obliged to make a decision without holding a hearing.
The effect of notifying an authorised recipient
Subsection 379G(1)(b) of the Act states that where an applicant has given written notice of the name and address of another person (authorised recipient), “the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.” In Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 Besanko J at [39] said;
… Once ss 359A and 379A are read conformably with s 379G, the section operates according to its clear terms, and if there is an authorised recipient, the document must be given to that person by the Tribunal. Furthermore, it seems to me that to ensure the sections operate conformably with each other, the document must be given to the authorised recipient by one of the methods specified in s 379A of the Act. That is the effect of the clear direction in s 359A(2)(a) of the Act. …
Subsection 379A(5)(d) of the Act sets out the methods available to the Tribunal to give documents to a person:
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
…
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; …
(Emphasis added)
The applicant’s authorised recipient was sent an invitation to comment on or respond to information by email on 23 December 2014. The invitation was sent as an attachment to an email sent to Mr Laba Sarkis at the email address provided in the application. The effect of this is that the applicant was taken to have received the invitation on 23 December 2014 (sub-s.379C(5)). Thus, the Tribunal fulfilled its obligation by sending the documents to Mr Laba Sarkis by email, at the address which was provided to the Tribunal on the application form submitted, and signed, by the applicant.
The applicant’s argument in regards to his authorised recipient’s failure to notify him does not amount to any error that affects the decision of the Tribunal. While a decision-maker may fall into jurisdictional error without any fault of its own (Wie v Minister for Immigration & Border Protection (2015) 90 ALJR 213; [2015] HCA 51 at [23] (Gageler and Keane JJ)), negligence or some other mishap on the part of an agent does not affect the legality of the Tribunal’s decision: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [53].
Conclusion
The Tribunal’s decision was not affected by jurisdictional error and the application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 February 2016
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