Huynh v Minister for Immigration

[2018] FCCA 3612

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUYNH & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3612

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an extension of time under s 477 – whether the Tribunal failed to take into account the mandatory requirements under reg 1.15A(3)(b)(i) of the Migration Regulations on a preliminary assessment – inadequate explanation for the delay – lack of sufficient merit to warrant an extension of time – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476, 477.

Migration Regulations 1994 (Cth), reg 1.15A, cl. 802.211 of Schedule 2.

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 & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 157 of 2018

Judgment of: Judge Street

Hearing date: 6 December 2018

Date of Last Submission: 6 December 2018

Delivered at: Perth

Delivered on: 6 December 2018

REPRESENTATION

Counsel for the Applicant: Mr S Walker

Solicitors for the Applicant: Su & Co

Solicitors for the Respondents: Ms M Jackson
Australian Government Solicitor

ORDERS

1. Grant leave to the applicants to rely upon the proposed amended application dated 27 November 2018 on condition that the error is as identified in ground 1.7 and ground 1.9 and that the alleged material ignored is the material the subject of 1.7.

2. Direct the applicants’ solicitor to electronically file the amended application on or before 5:00pm on 7 December 2018 in the same form as handed up to the Court.

3. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

4. The first applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 157 of 2018

HONG DIEP HUYNH

First Applicant

THI THU LIEU DANH

Second Applicant

THI KIM NHI DANH

First Applicant

HOANG CHI THIEN DANH

First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 December 2017 affirming the decision of the delegate not to grant the applicants Partner (Temporary) (Class UK) visas. 

2. The proceedings were commenced 71 days outside the time required under s 477 of the Act. Accordingly, an extension of time is required under s 477 of the Act. The applicants, consistent with the requirements of s 477(2) of the Act, makes an application for an extension of time and there is an explanation advanced by the first applicant suggesting that she was overwhelmed and this delayed the first applicant’s seeking of assistance in respect of pursuing the application. The explanation on its face, is unsatisfactory.

3. In determining whether or not time should be extended under s 477 of the Act, the Court is engaging in a preliminary assessment and must take into account that if time is not extended, the applicants have no right of appeal. No particular prejudice or specific prejudice is alleged by the first respondent. In addition to the explanation for the delay, the Court is to consider the merits of the application and whether there is a sufficiently arguable case in the circumstances to warrant an extension of time as being necessary in the interests of the administration of justice. 

The proposed ground

1. The proposed ground in the amended application is as follows:

   1. In reviewing the primary decision to refuse the application by the Applicants for UK Partner (Temporary) and BS Partner (Residence) visas, the Second Respondent (the Tribunal) committed a jurisdictional error in concluding that it was not satisfied that at the time the application was made and at the time of its decision the First Applicant and her sponsor husband were in a spousal relationship.

   Particulars

   1.1 By s 348 and s 349 (1) of the Migration Act 1958 (the Act) the Tribunal was obliged to form its own conclusion, on the material before it, as to the proper performance of the duty imposed by s 65 of the Act;

   1.2 the decision to be made in performance of the duty imposed by s 65 is to either grant the visas under s 65(a)(a), or to refuse to grant the visas under s 65(1)(b) – depending on the existence of one or other of two mutually exclusive states of affairs or jurisdictional facts, namely the Tribunal's satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or its non-satisfaction of one or more of those matters;

   1.3 the matters set out in the sub-paragraphs of s 65(1)(a) centrally include that the criteria prescribed by the Act and the Migration Regulations for the visa for which a valid application has been made have been met;

   1.4 formation of the Tribunal's state of satisfaction or of non-satisfaction is in each case conditioned by a requirement that it must proceed reasonably and on a correct understanding and application of the applicable law, which includes the criteria prescribed by the Act and the Migration Regulations for the visa in question;

   1.5 Regulation 1.15A required that the Tribunal must consider all of the circumstances of the (marital) relationship, including "the nature of the household", which, in turn, included "any joint responsibility for the care and support of children";

   1.6 the Tribunal had material before it going to that issue, which included information contained in the visa application, statutory declarations made by the First Applicant and her sponsor husband, and a reunification plan from  the Department of Child Protection;

   1.7 in its written statement prepared as required by s 368 of the Act, the Tribunal failed to refer to either the issue of joint responsibility for the care and support of children, or the material before it that related to that issue;

   1.8 the written statement is evidence of the findings actually made, referred to and relied upon by the Tribunal in coming to its decision and that no finding, evidence or reason which was of any significance to the decision has been omitted;

   1.9 it should be concluded that the Tribunal made a jurisdictional error by failing to consider the issue of joint responsibility of the First Applicant and her sponsor husband for the care and support of her children, and further and alternatively by ignoring the material referred to above in its relevance to that issue, and its exercise or purported exercise of power was thereby affected.

2. The Court granted leave to rely upon the proposed ground in the amended application. The Court confirmed and clarified that the error in respect of the proposed ground was as identified in ground 1.7 and 1.9 and that the alleged material ignored is material in relation to 1.7. It was on that condition, that leave was granted to file the amended application.

3. Mr Walker of counsel has submitted that the Tribunal ignored key information in the context of the mandatory requirements under reg 1.15A(3)(b)(i) of the Regulations. Mr Walker took the Court to the statutory declarations in relation to references to the children as well as a Department of Child Protection reunification plan. Mr Walker submitted that there was no analysis in the Tribunal’s reasons under “Nature of the household” that addressed the evidence that had been adduced in relation to the children in the context of the mandatory consideration required under reg 1.15A(3)(b)(i) of the Regulations. 

4. The Tribunal’s reasons identified that the relevant issue in the present case was whether the applicants had satisfied the requirements of cl 820.211(2)(a) of Schedule 2 to the Regulations and in that regard the Tribunal was determining, whether the parties at the time of making the application and at the time of the decision were in a spousal relationship, taking into account s 5F of the Act and reg 1.15A(3) of the Regulations. 

5. The Tribunal accepted that the parties had been married in August 2015.  The Tribunal made express reference to the three children of the first applicant in its reasons in paragraph 7 and the Tribunal expressly referred to taking into account the statutory declarations in paragraph 8 of its reasons. 

6. The Tribunal further referred to the content of part of the statutory declarations relating to the children in paragraph 9 and made further express reference to the children interacting with the sponsor and that he treats them well and that they like him in paragraph 32 of the Tribunal’s reasons. The Tribunal also referred in paragraph 33 of its reasons to the children having been taken into care by the Department of Child Protection at about the same time as the applicant and that the sponsor moved into a rented property. The Tribunal also made express reference in paragraph 34 to the children having been recently returned by the Department of Child Protection.   The Tribunal’s reasons in paragraph 45, under “Nature of the household”, make express reference to the assertion that the sponsor took responsibility for everything else, including in relation to the children.

7. Given the above reasons of the Tribunal, there was no failure by the Tribunal on a preliminary assessment. In respect of the proposed ground, there was no failure by the Tribunal to take into account the mandatory consideration required under reg 1.15A(3)(b)(i) of the Regulations on a preliminary assessment. There is no reasonably arguable ground that the Tribunal failed to take into account the evidence concerning the children in the determination of the requirements in respect of the “Nature of the household”. It was not necessary for the Tribunal to refer to every piece of evidence.  The Court is not satisfied that the merits of the application warrant an extension of time in the interests of the administration of justice. 

8. The proposed ground identified in the amended application lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice. Taken together with the inadequate explanation for the delay and the lack of sufficient merit, the Court is not satisfied it is necessary in the interests of the administration of justice to extend time under s 477 of the Act as being. 

9. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 January 2019