Huynh v Minister for Immigration
[2020] FCCA 1169
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUYNH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1169 |
| Catchwords: MIGRATION – Application for extension of time to file in the Federal Circuit Court – whether leave to file should be granted – whether it is necessary in the interests of the administration of justice to grant an extension of time. |
| Legislation: Judiciary Act 1903 (Cth), ss.39B Migration Act 1958 (Cth), ss.5F, 368, 476, 477 Migration Regulations 1994 (Cth), reg.1.15A |
| Cases cited: AVL18 v Minister for Home Affairs [2019] FCA 706 AVQ15 v Minister for Immigration & Border Protection [2018] FCAFC 133 CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 |
| First Applicant: | HONG DIEP HUYNH |
| Second Applicant: | THI THU LIEU DANH |
| Third Applicant: | THI KIM NHI DANH |
| Fourth Applicant: | HOANG CHI THIEN DANH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 157 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 18 March 2020 |
| Date of Last Submission: | 18 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr Walker |
| Solicitors for the Applicants: | Suh & Co |
| Counsel for the First Respondent: | Ms Oliver |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of time filed on 26 March 2018 be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $3,737.00.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
PEG 157 of 2018
| HONG DIEP HUYNH |
First Applicant
| THI THU LIEU DANH |
Second Applicant
| THI KIM NHI DANH |
Third Applicant
| HOANG CHI THIEN DANH |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 26 March 2018, the applicants seek an extension of time to seek judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 December 2017. By that decision, the Tribunal affirmed a decision made by a delegate (‘the delegate’) of the first respondent (‘the Minister’) to refuse to grant the applicants’ application for Partner (Temporary) (Class UK) (Subclass 820) visas (‘the visa’).
The application for an extension of time in this Court was filed 71 days out of time. Pursuant to section 477(2) of the Act, the Court may extend time for the making of an application if it is satisfied that it is necessary in the interests of the administration of justice to do so.
Background
The background of this matter is largely set out in the Minister’s written submissions, and I adopt that background as follows.
a)The applicants are citizens of Vietnam. The first applicant is the mother of the second to fourth applicants, and she is married to Mr Tanh Chu Phan (who is not the father of the second to fourth applicants).
b)On 8 April 2016, the first applicant applied for the visa, with the second, third and fourth Applicants named as secondary applicants in the application.
c)On 6 February 2017, the delegate refused to grant the visa.
d)On 24 February 2017, the applicants applied for review of the delegate’s decision by the Tribunal.
e)On 7 June 2017, the Tribunal invited the applicants to provide further information regarding the first applicant’s spousal relationship by 30 June 2017, to which the applicants did not respond.
f)On 3 August 2017, the Tribunal invited the applicants to attend a hearing before the Tribunal.
g)On 14 September 2017, the first applicant appeared before the Tribunal with the assistance of an interpreter.
h)On 18 September 2017, the Tribunal sent an invitation to the applicants to comment on information.
i)On 9 October 2017, the applicant asked for an extension of time to respond to this invitation. This was declined by the Tribunal on 11 October 2017, and no further information was received from the applicants.
j)On 13 December 2017, the Tribunal affirmed the delegate’s decision not to grant the visa.
Tribunal’s decision
The Tribunal was not satisfied that the first applicant and the sponsor were in a spousal relationship, and found that she did not meet the requirements of cll.820.211(2) and 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
As the first applicant did not meet those requirements, the Tribunal found that the second, third and fourth Applicants also did not satisfy the criteria for the grant of the visas.
Proceedings in the Federal Circuit Court
On 26 March 2018, the applicants filed an application for extension of time in which to seek judicial review of the Tribunal’s decision, supported by an affidavit affirmed by the first applicant on 23 March 2018.
The application was filed 71 days outside of the 35 days permitted under section 477(1) of the Act.
At the hearing before his Honour Judge Street on 6 December 2018, leave was given to the applicants to rely on a proposed amended application. After hearing submissions by the parties, His Honour delivered ex tempore reasons dismissing the application for an extension of time with costs.
Proceedings in the Federal Court
On 2 January 2019, the applicants filed an application with the Federal Court seeking judicial review of the Federal Circuit Court’s decision, pursuant to section 39B of the Judiciary Act 1903 (Cth).
On 14 June 2019, his Honour Justice Colvin allowed the application and made Orders remitting the matter to the Federal Circuit Court (differently constituted) for determination according to law.
His Honour found that Judge Street proceeded on the basis that the only explanation advanced by the first applicant for the failure to bring the application within time was that she was overwhelmed and this delayed her seeking assistance. Further, Colvin J found that Judge Street had failed to consider or address an important part of the applicant’s explanation for the delay, being that the family had moved address and the Tribunal’s decision had been sent to the previous address. [1]In doing so, his honour found that there was jurisdictional error by reason of a failure by the primary Judge to undertake the statutory task required by section 477(2) of the Act.[2]
[1] Huynh v Federal Circuit Court of Australia [2019] FCA 891, [44]-[47].
[2] Ibid [56].
Extension of time – section 477(2)
Section 477(2) of the Act provides that:
(2) The Federal Circuit Court may, by order extend that 35 day period as the Federal Circuit Court 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.
The nature of the power conferred by section 477(2) of the Act was considered by Mortimer J in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] and by Wigney J in SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [43]-[46].[3]
[3] See also Huynh v Federal Circuit Court of Australia [2019] FCA 891 at [39].
Whilst there are no mandatory considerations to which the Court must have regard, it is well established that the following non-exhaustive principles are relevant to the exercise of the discretion conferred by section 477(2) of the Act:
a)the extent of the delay;
b)whether there has been a reasonable and adequate explanation for the delay;
c)any prejudice to the respondents;
d)the impact on the applicants;
e)the interests of the public at large; and
f)the merits of the substantive application for judicial review.
Regarding merit, the Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application at a final hearing and the Court should not expect a ground of judicial review to be fully developed: Mortimer J in CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [5]-[6], and MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 at [62].
According to Mortimer J in CAL15, the threshold is whether a ground of review is arguable, meaning it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument.
Applicants’ submissions on explanation for delay
In her affidavit sworn 26 March 2018, the first applicant deposes that she had first learned of the Tribunal’s decision of 13 December 2017 on 19 March 2018. She said that she sought assistance within the Vietnamese community on the same day, and had received a copy only on 23 March 2018 when her migration agent and lawyers (who she appointed shortly after 19 March 2018) requested.
The first applicant also noted that:
a)before the hearing on 14 September 2017, she had moved to a different address to the address on record at the Tribunal;
b)she is illiterate and thought it was sufficient for her to notify the Member of her new address at the hearing; and
c)the Court should be satisfied that the delay in bringing the application is reasonably explained.
The applicants submit that there is no prejudice to the Minister that would arise from an extension of time being granted. On the other hand, should it be refused, the applicants say they would suffer substantial prejudice from being deprived of the opportunity to have the Tribunal decision reviewed for claimed jurisdictional error.
Regarding the merits of the application, it is submitted that the case is arguable and that in all the circumstances of the case it is necessary in the interests of the administration of justice that an Order be made extending the time. Much of the submission traverses the authorities traversed at paragraphs 13-16 above.
The applicants also assert that the application for review has one ground. The Tribunal is said to have fallen into jurisdictional error by failing to consider a mandatory consideration, being the joint responsibility of Ms Huynh and her husband for the care and support of her children, and by ignoring material relevant to that issue (see paragraphs 32-33, applicant’s written submissions).
First Respondent’s submissions generally
The first respondent submits that it is not necessary in the interests of the administration of justice that an extension of time be granted in the present case.
The Minister says that while he concedes that he will not suffer any significant prejudice if time were to be extended, the application for an extension of time should be refused because the applicants have not adequately explained their delay and the underlying substantive application lacks merit.
It is submitted that:
a)the first applicant was less than clear with the Tribunal at that hearing as to the address where she was living at that time, and that, in any event, the first applicant did not update her address in writing as required by the Tribunal;
b)the evidence does not necessarily support a conclusion that the first applicant resided at a different address at the relevant times, because on 9 October 2017 the first applicant responded to a letter from the Tribunal sent to her ‘former address’;
c)the Tribunal methodically and correctly applied the relevant legislative provisions in assessing whether the first applicant was the sponsor’s spouse,[4] applying an active intellectual process, by giving proper, genuine and realistic consideration and making findings upon each of the prescribed matters set out in regulation 1.15A(3) of the Regulations.[5]
d)the Tribunal specifically considered the family’s care arrangements in relation to the first applicant’s children - in particular at [7], [9], [10], [33] and [37] of the decision;
e)the Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances, as part of its fact finding function;[6]
f)the applicants must show that by reason of unreasonableness, illogicality or a failure to engage properly with the fact-finding task or a failure to address an important claim or some other reason, the approach to fact-finding lacked the character or quality of decision that the Tribunal had been authorised to make;[7]
g)it is well settled that merely because there is no reference in a decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered;[8]
h)the purported proposed ground of review is a plea for impermissible merits review; [9]
i)the substantive application has no merit; and
j)in the circumstances the extension of time should be refused.
[4] He v Minister for Immigration & Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [76] and [79].
[5] Ibid at [52]; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29], [32]-[33], citing Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [26] and Gummow J’s judgment in Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALR 291).
[6] Lee v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 464 at [27]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’) at 281-282.
[7] AVL18 v Minister for Home Affairs [2019] FCA 706 (Colvin J) at [9].
[8] AVQ15 v Minister for Immigration & Border Protection [2018] FCAFC 133 at [41](e).
[9] Wu Shan Liang.
Consideration
The first matter that arises is the explanation for the delay in the filing of the materials. As Justice Colvin observed when the matter was before him on appeal at [4]:
It is common ground that the Tribunal sent a letter the day after the hearing inviting Ms Huynh to comment on certain matters relevant to the review, specifying 12 October 2017 for a response. The letter was sent to an address in Darch, a suburb of Perth in Western Australia. The Darch address was the address formally notified to the Tribunal for communications with the applicants. However, in the course of the Tribunal hearing, Ms Huynh had informed the Tribunal that she had moved to a new address. On 9 October 2017, Ms Huynh responded to the letter asking for an extension of four weeks to respond. The affidavit of Ms Huynh did not refer to these events.
In her affidavit affirmed 29 November 2018, Ms Huynh deposed relevantly:
2. I cannot remember how I received the September 2017 letter from the Tribunal. I had moved to a new address before the hearing, as I told the Tribunal.
3. I definitely did not receive the Tribunal decision until late March 2018. The Immigration Department telephoned me to tell me I would have to leave Australia. I was shocked. I went to see a migration agent straight away and she obtained a copy of the decision.
Given Ms Huynh unquestionably received the letter from the Tribunal dated 18 September 2017 (after the Tribunal hearing in which she notified her change in address) at her allegedly former address at 118 Westport Parade Darch WA 6065 (see Ms Huynh’s reply on 9 October 2017 CB197), there is a measure of confusion about exactly what occurred.
In the end, however, Ms Huynh has sworn on her oath, and has not been cross-examined, that she did not receive the Tribunal decision until March 2018.
In all the circumstances, I do not regard Ms Huynh’s explanation as being of any weight against her. As the applicants’ submissions correctly point out, the applicants had everything to lose by delaying, and Ms Huynh’s affidavit as to her general state and her difficulties of comprehension militate fairly very strongly in her favour in this regard.
The next matter to be considered is prejudice to the Minister. It is conceded that there is none.
This brings us to the area that in my view creates a much greater difficulty for Ms Huynh and the applicants. I appreciate and bear steadily in mind that in a proceeding of this sort the Court is not examining the matter as at a final hearing. It is a matter of a necessarily somewhat impressionistic analysis (see Huynh v Federal Circuit Court of Australia [2019] FCA 891 at [58] per Colvin J).
Nonetheless in considering this aspect of the matter, the following points should be noted. First, it was for the applicants to advance their case before the Tribunal and to put before the Tribunal material that would satisfy the Tribunal that the relevant test had been met, i.e., that the primary applicant was married to her sponsor at the time of the visa application and in a genuine and continuing spousal relationship.
The Tribunal had before it statutory declarations both by Ms Huynh and her sponsor. Those asserted marriage in August 2015 and that the parties had lived together ever since (CB45). The statutory declaration of Ms Huynh also deposed that in October 2015 her children were taken into the care of the Department of Child Protection.
The sponsor’s affidavit (CB44) likewise attested to the marriage soon after Ms Huynh arrived in Perth, referred to the three children being in the care of the Department of Child Protection, but did not otherwise provide any details relevant to the application. Subsequent statutory declarations at CB68 and CB69 refer to the children’s return to the sponsor and Ms Huynh’s residence and they are attending local schools but likewise add nothing further.
The decision of the delegate noted at CB108-111 the nature of the test in terms of regulation 1.15A and noted that Ms Huynh and the sponsor had not provided any documentary evidence to support the financial aspects of the relationship, had not provided any documentary evidence to support the nature of their household, had not provided any documentary evidence to support the social aspect of the relationship and noted at CB110:
There is no evidence that you see the relationship as a long-term one, that you draw emotional support and companionship from each other or that you have a commitment to a shared life together.
Accordingly the application by Ms Huynh was not granted.
Ms Huynh applied for a review and did not add anything although the request for fee reduction referred to “support in kind” from the husband (CB154). The Tribunal sought additional information from Ms Huynh on 7 June 2017 (CB173 and following).
As earlier indicated the Tribunal wrote to Ms Huynh on 18 September 2017 seeking further information in light of further information before the Tribunal (which the Tribunal ultimately gave no weight to). Ms Huynh replied on 9 October 2017 seeking further time to provide information but no further information was provided.
I note that at paragraph 35 of the Tribunal’s decision (CB205), the Tribunal recorded:
The Tribunal indicated to the applicant that it was concerned that despite being afforded opportunities by both the Department as well as the Tribunal to provide information, and despite having the assistance of a migration agent during the application process, aside from a marriage certificate, there had been no other evidence whatsoever submitted by the parties in support of the application. The applicant responded that the sponsor looks after the paperwork and “if you ask me, I don’t know anything”. The Tribunal notes that the Department wrote its decision refusing the visa [in] February 2017. The delegate specifically highlighted that there was limited evidence to point to the parties being in a genuine and continuing spousal relationship. The Tribunal would have expected that the parties would have made an effort to provide evidence that pointed to them living together and socialising together and having a mutual commitment to one another, at least for the last six months, if not before then. The Tribunal places some adverse weight on the fact that the parties have not been able to demonstrate with information specifically requested by the Tribunal that would assist it to be satisfied that the parties are in a genuine and continuing spousal relationship.
I bear steadily in mind that the Court is not on this occasion conducting a detailed final hearing. It is sufficient to note that that adverse comment was but one of a number of adverse comments that the Tribunal made. The Tribunal was not persuaded favourably by such evidence as Ms Huynh provided regarding the financial aspects of the relationship. The Tribunal found the evidence about the nature of the household unsatisfactory. I note in this regard that the Tribunal found that the parties had been living in different states and without maintaining any contact whatsoever for some time.
The Tribunal was not persuaded by the limited evidence provided in relation to the social aspects of the parties’ relationship.
The Tribunal, in the light of the matter asserted by Ms Huynh at the hearing, had difficulty in gauging the degree, if any, of the companionship and the emotional support the parties draw from one another. The Tribunal concluded that having considered all the evidence, the Tribunal was not satisfied that the parties have a mutual commitment to a shared life to the exclusion of others although they were married. Indeed the Tribunal comprehensively rejected the claims made by Ms Huynh.
The Tribunal was aware of the (in my view, sparse) information provided about the children in which reference has been made in the statutory declarations (see [33] and [34]) and there is no reason to suggest that the Tribunal overlooked that matter when the judgment is read fairly as a whole.
In my view, Ms Huynh’s chances of success at a final hearing are so poor that it is inappropriate to permit the matter to go to final hearing. The Tribunal’s decision was in my view inevitable given the deficiencies in the way the case was presented by Ms Huynh to it.
Accordingly, the application for an extension of time will be refused.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 15 May 2020
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