Hunjan v Minister for Immigration and Border Protection
[2015] FCA 1340
•26 November 2015
FEDERAL COURT OF AUSTRALIA
Hunjan v Minister for Immigration and Border Protection [2015] FCA 1340
Citation: Hunjan v Minister for Immigration and Border Protection [2015] FCA 1340 Appeal from: Application for extension of time: Hunjan v Minister for Immigration & Anor [2015] FCCA 2417 Parties: HARIDESHWAR SINGH HUNJAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: QUD 790 of 2015 Judge: COLLIER J Date of judgment: 26 November 2015 Catchwords: MIGRATION – application for extension of time to appeal – no appearance by appellant at hearing – want of prosecution – lack of substantive merits – appeal dismissed with costs Legislation: Migration Act 1958 (Cth) s 5F
Migration Regulations 1994 (Cth) cll 820.211(2), 820.211(2)(d), 820.211(2)(d)(ii), 820.221(2), 820.221(2)(d)
Federal Court Rules 2011 (Cth) rr 36.03, 36.05Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigrations & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259Date of hearing: 26 November 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr B Dube of Sparke Helmore Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 790 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HARIDESHWAR SINGH HUNJAN
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
26 NOVEMBER 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 790 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HARIDESHWAR SINGH HUNJAN
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
26 NOVEMBER 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Before the Court is an application for an extension of time to file a notice of appeal against a decision of the Federal Circuit Court of Australia given on 7 August 2015. In that case the Court dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) in which the Tribunal found that the applicant did not satisfy the requirements of cl 820.221(2) of the Migration Regulations 1994 (Cth) (the Regulations) because his relationship with his sponsor did not meet the requirements of s 5F of the Migration Act 1958 (Cth) in relation to spousal relationships.
When the matter was called this afternoon there was no appearance by the applicant. The matter was called outside the Courtroom but there was no response by the applicant. Court was temporarily adjourned while the Court Officer sought to ring the applicant on the contact telephone number notified to the Court, however there was no answer.
Correspondence on the Court file indicates that the Brisbane Registry wrote to both the applicant and the solicitors for the Minister on 21 September 2015 informing them of the time, date and place of today’s hearing. Mr Dube, solicitor representing the Minister, provided me with a copy of a letter dated 19 November 2015 sent by express post by his firm to the applicant at the notified address of the applicant, informing the applicant of the time, date and place of today’s hearing.
I am satisfied that the applicant was properly informed of today’s hearing. In the circumstances it is open to me to dismiss the application for want of prosecution of the application. I am also satisfied, however, that the application can properly be dismissed on the merits. I have formed this view for reasons that follow.
Application for extension of time
Rule 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) requires an appellant to file a notice of appeal the period mentioned in r 36.03, which is 21 days after the date on which the judgment appealed from was pronounced or the order was made. In this case, the applicant filed an application for an extension of time on 2 September 2015, being five days outside the limit prescribed by the Rules.
The principles guiding the discretion of the Court to grant an extension of time were explained in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and include:
·the extent of the delay;
·the explanation for the delay; and
·the merits of the substantive application.
In an affidavit of the applicant filed on 2 September 2015, the applicant does not provide reasons why the application has been filed out of time. Rather, the applicant repeats the draft grounds of appeal provided in his draft notice of appeal.
The Minister accepts that the delay in this case is not excessive or that he would be prejudiced by reason of the delay.
Substantive application
The applicant provided a draft notice of appeal in accordance with the Rules. The applicant makes the following claims:
Grounds of Appeal
1. As per below federal circuit court refused these points.
2.It is deemed that in my case there were errors in finding facts whose existence is a condition precedent to jurisdication. The tribunal has not considered the compliance with the condition because my relationship with my sponsor, Ms claudete vea kay, did not meet the requirements in relation to spouse relationships.
3.Tribunal member claims my relationship was extremely shot prior to your decision to marry and I provided no evidence of inception and development of your relationship.
4.Tribunal member has considered my statements pertaining to schedule 3 criteria. Although compelling reasons and evidences were presented, member has claimed I do not meet the relevant schedule 3 criteria.
(Errors in original.)
The applicant seeks the following orders:
1. An order that the decision of the tribunal or minister be quashed.
2.A writ of mandamus directed to the tribunal, requiring them to determine the applicant’s application according to law.
(Errors in original.)
Background
The applicant is a citizen of India. He arrived in Australia in July 2009 as the holder of a Student (Temporary) (Class TU) visa, which ceased on 15 June 2011. The applicant lodged a further visa application in May 2011, however that application was withdrawn.
On 23 March 2012, the applicant applied for a Partner (Temporary) (Class UK) visa, claiming sponsorship from his spouse, Claudette Vera Kay (the sponsor). On 5 September 2013, a delegate of the Minister refused to grant the visa on the basis that the Minister was not satisfied that the applicant was the spouse of the sponsor and therefore did not meet the requirements of cl 820.211(2) of the Regulations.
On 11 September 2013, the applicant applied for a review of the delegate’s decision to the Migration Review Tribunal (as it then was) (the Tribunal).
Clause 820.221(2)(d) of the Regulations required that the applicant satisfy the Tribunal that he met the Schedule 3 criteria 3001, 3003 and 3004 and if not, that the applicant had compelling reasons for not applying those criteria. Schedule 3 criteria 3001 also requires that the applicant must have lodged a temporary partner visa application within 28 days of his last substantive visa lapsing.
In this case the applicant’s student visa lapsed on 15 June 2011. His application for a partner visa was not lodged until 23 March 2012, nearly nine months outside the time limit provided by the Regulations. In that respect, the Tribunal found that the applicant did not meet Schedule 3 criteria 3001.
However, the Tribunal recognised that even if the applicant did not meet Schedule 3 criteria 3001, subject to cl 820.211(2)(d) the applicant could still obtain a temporary partner visa if he could satisfy the Tribunal that there were compelling reasons for not applying the Schedule 3 criteria. The applicant claimed that the compelling circumstances in his case included that his sponsor’s life would be at risk due to health concerns if he were to leave Australia.
The Tribunal was not satisfied that there were compelling circumstances, concluding in summary that:
·even if the applicant and the sponsor were in a genuine relationship at the time of the application, it would not, or itself, justify the waiver of Schedule 3 criteria;
·the sponsor was not so dependent upon the applicant for support that he should not have been required to leave Australia to lodge his application; and
·any forced separation and strain on the parties’ relationship did not constitute a compelling reasons for the non-applicant of the Schedule 3 criteria.
The Tribunal affirmed the decision of the delegate on 29 April 2015.
On 26 May 2015, the applicant filed a show cause application seeking judicial review of the Tribunal’s decision in the Federal Circuit Court. The application raised three grounds, namely:
1.The delegate refused to grant the visa on the basis that I did not satisfy cl 820.221(2) because my relationship with my sponsor, Ms Claudette Vera Kay, did not meet the requirements of s 5F in relation to spouse relationships.
2.Tribunal member claims my relationship was extremely short prior to your decision to marry and I provided no evidence of the inception and development of your relationship.
3.Tribunal member has considered my statements pertaining to schedule 3 criteria. Although compelling reasons and evidences were presented, member has claimed I do not meet the relevant schedule 3 criteria.
In a supporting affidavit, the applicant re-stated the grounds, however appeared to amend ground one to read:
1.It is deemed that in my case there were errors in finding facts whose existence is a condition precedent to jurisdiction. The tribunal has not considered the compliance with the condition cl.820.221(2) because my relationship with my sponsor, Ms Claudette Vera Kay, did not meet the requirements of s.5F in relation to spouse relationships.
Prior to hearing, the court below directed that the applicant file and serve any amended application, any additional evidence or any affidavit material by 13 July 2015 and written submissions 14 days prior to the hearing. The applicant did not file any of the material requested.
In conclusion, his Honour held from [18]:
The tribunal’s reasons reveal that the tribunal did not make a finding that the applicant and his sponsor’s relationship did not meet the definition of spousal relationship. The tribunal expressed concerns in relation to the genuineness of that relationship but did not consider that it was necessary to determine the application before it on the basis of the nature of the relationship between the applicant and his sponsor.
The tribunal paid more attention to whether the requirements of 3001 of Schedule 3 to the Regulations were met. They clearly were not. And then, whether there were compelling reasons for not applying the criteria 3001, 3004 and 3004.
To the extent that the applicant’s submissions and his grounds of review focus upon what he says are erroneous findings by the tribunal about the nature and extent of his relationship with his spouse, his submissions are not to the point. The tribunal did not decide the application on that basis.
His Honour went further at [22] to determine that the “tribunal properly directed itself to the law about the way in which it should interpret the phrase ‘compelling reasons’”, and that there was “nothing erroneous about the principles identified and seemingly applied by the tribunal”. Specifically, at [23] his Honour identified that the only reason advanced by the applicant in support of his claim that Schedule 3 criteria should not apply, was that his partner’s health was such that her life would have been put at risk if he had been required to depart Australia. This claim was repeated for his Honour in the court below.
At [24], his Honour explained “there was no evidence before the Tribunal, apart from the applicant’s assertions, to support what he claimed to be the compelling circumstances”. The Tribunal indicated the applicant should provide a medical report, which explained his partner’s condition at the relevant time, which the applicant did following the hearing. That report certified that the patient, Ms Kay, was suffering from Rheumatic Fever with damaged valves, a condition she had experienced since she was fourteen. It also detailed that she suffered a minor heart attack in January 2012.
From [26] his Honour explained:
The tribunal considered that that medical report was insufficient to demonstrate compelling reasons as to why the applicant needed to remain in Australia in March, 2012 in order to care for his partner. As the tribunal observed, the letter contains very limited information as to the state of the applicant’s partner’s health at the time of the application for the visa. There was no information as to the care arrangements that were in place for her at that time. Accordingly, the tribunal was not satisfied that the applicant’s partner was dependent upon him or so dependent upon him for support at the relevant time that he should not have been required to leave Australia to bring his application.
Also having regard to statutory declarations of Ms Kay and the applicant, his Honour held that the tribunal assessed all evidence before it and it could not be found that it did not take it into account. His Honour held that the conclusion of the tribunal was the only conclusion that was open to it, as there were no compelling reasons for not applying Schedule 3 criteria and because the applicant could not otherwise satisfy them, the applicant could not meet the requirements of cl 820.211(2)(d)(ii).
In conclusion at [30]-[31], his Honour held:
This review, it seems to me, is an attempt by the applicant to cavil with the merits of the tribunal’s decision.
No jurisdictional error is identified by the grounds relied upon by the applicant, nor, in my view, is any jurisdictional error revealed by the reasons for decision given by the tribunal.
In those circumstances, the application must be dismissed.
Submissions of the applicant
The applicant has not provided the Court with written submissions in respect of the application for extension of time or the draft notice of appeal.
Submissions of the respondents
The second respondent filed a submitting notice in this matter on 10 September 2015. The second respondent submits to any order the Court may make in the proceeding, save as to costs.
The first respondent (the Minister) has provided the Court with detailed written submissions. The Minister submits that the proposed notice of appeal has no reasonable prospects of success and for that reason, together with the lack of explanation for the delay; the Court should refuse to grant the application for an extension of time.
In respect of the draft notice of appeal, the Minister submits further that the grounds are largely meaningless and, as before the primary Judge, seek impermissible merits review (see Minister for Immigrations & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The applicant has also not identified any error in his Honour’s findings on the evidence that the Tribunal gave proper consideration to the applicant’s claims. The Minister submits that his Honour was correctly satisfied that the Tribunal gave proper consideration to his claims.
Consideration
Ground one of the draft notice of appeal raises no specific ground for review.
Grounds 2 – 4 of the draft appeal before this Court replicate the three grounds which were before the court below when read with the accompanying affidavit to the application below. The applicant has simply added ground one to this draft notice of appeal to, I assume, claim that the Federal Circuit Court erred in the same manner as that of the Tribunal.
It is of the essence of a judicial review of a decision of the Tribunal that the Court is not permitted to engage in merits review of the decision. It is irrelevant that, on the facts, the Court may form a different view of whether the relationship of the applicant and the sponsor was genuine at the relevant time, or indeed whether compelling reasons existed for not applying the criteria in Schedule 3 to the Regulations. The only legitimate issues which could be raised in the draft notice of appeal are whether:
·the decision of the Tribunal was infected by an error which went to the jurisdiction of the Tribunal in making its decision; and
·whether the primary Judge erred in finding that there was no such error in the decision of the Tribunal.
In this case no error in either the decision of the Tribunal or the primary Judge has been demonstrated.
In these circumstances, I am satisfied that the substantive application lacks merit.
The appropriate order is to dismiss the application with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 26 November 2015
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