Johnson v Minister for Immigration
[2015] FCCA 610
•31 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHNSON v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 610 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file review application – factors for consideration. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05(2) Migration Regulations1994 (Cth), reg.1.15A(3), Schedule 2, cl.801.221 |
| Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 Islam v Minister for Immigration & Anor [2013] FCCA 1687 Li v Minister for Immigration & Anor [2011] FMCA 12 McVey v Minister for Immigration & Citizenship & Anor [2012] FMCA 924; (2012) 269 FLR 379 Lindsay v Director of Professional Services Review & Ors [2011] FCA 262 Mpunzwana v Minister for Immigration & Anor [2009] FMCA 901 NBMB & Anor v Minister for Immigration & Citizenship & Anor [2008] FCA 149; (2008) 100 ALD 118 |
| Applicant: | NICHOLAS JOHNSON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 299 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 March 2015 |
| Date of Last Submission: | 16 March 2015 |
| Delivered at: | Perth |
| Delivered on: | 31 March 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (made on 16 March 2015)
The application for an extension of time be dismissed.
Reasons for Judgement in relation to the matter will be delivered at a later date.
The applicant pay the first respondent’s costs in the sum of $3416 by 30 May 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 299 of 2014
| NICHOLAS JOHNSON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 30 September 2014, the applicant, Nicholas Johnson,[1] seeks judicial review[2] under s.476 of the Migration Act1958 (Cth)[3] of a decision of the second respondent, the Migration Review Tribunal[4] made on 26 August 2014, whereby the Tribunal affirmed a decision of a delegate[5] of the first respondent, the Minister for Immigration & Border Protection,[6] dated 19 February 2013 to refuse to grant a Partner (Residence) (Class BS) visa[7] to Mr Johnson.
[1] “Mr Johnson”.
[2] “Judicial Review Application”.
[3] “Migration Act”.
[4] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at CB 204-214.
[5] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 128-130.
[6] “Minister”.
[7] “Partner Residence Visa”.
The Judicial Review Application was lodged out of time, and is therefore incompetent,[8] unless the Court grants an extension of time.[9] The Judicial Review Application seeks an extension of time.
[8] Migration Act, s.477(1).
[9] Migration Act, s.477(2).
When the matter came on for hearing on 16 March 2015 Mr Johnson appeared on his own behalf. When asked whether he had submissions to make on the Judicial Review Application, he indicated that he did not, and that he understood from “advice” given to him by the Minister’s lawyers, and “legal aid” that the Judicial Review Application had no prospects of success, and that he realised he would soon be “leaving Australia”. Mr Johnson said that that was due to the “naivety” and “stupidity” of himself and his wife in relation to the conduct of the proceedings before the Tribunal. Mr Johnson indicated that, in the circumstances, he had come to Court because the Judicial Review Application had been listed for hearing and to see “what happened”. The concessions made by Mr Johnson as to the likely success of his Judicial Review Application were properly made. The Court, having read the relevant papers prior to the hearing and heard such submissions as were made at the hearing, made the following orders at the hearing:
1. The application for an extension of time be dismissed.
2. Reasons for Judgement in relation to the matter will be delivered at a later date.
3. The applicant pay the first respondent’s costs in the sum of $3416 by 30 May 2015.
What follows are the Reasons for Judgment in relation to the orders made on 16 March 2015.
Background to the application to the Tribunal
The background to the application to the Tribunal for merits review of the Delegate’s Decision is as follows:
a)Mr Johnson was born on 17 March 1963 in England;[10]
b)Mr Johnson married Ms Helen Ridding on 5 July 2007 after he first met her on 23 June 2005 over the telephone;[11]
c)Mr Johnson applied for the Partner Residence Visa on 27 July 2008;[12]
d)Mr Johnson was granted a Partner (Temporary) (Subclass 820) visa on 30 April 2010;[13]
e)on 7 March 2012 Mr Johnson was advised that his Partner Residence Visa application would be considered and he was requested to provide additional information in support of the application;[14]
f)on 26 July 2012 Mr Johnson advised the Department of Immigration[15] that he and Mrs Johnson had separated;[16]
g)on 28 October 2012 Mr Johnson advised the Department that he and Mrs Johnson had reconciled;[17]
h)on 19 February 2013 the Delegate refused Mr Johnson’s application for the Partner Residence Visa;[18] and
i)on 18 March 2013 Mr Johnson lodged an application for review of the Delegate’s Decision with the Tribunal.[19]
[10] CB 3.
[11] CB 13.
[12] CB 1-22.
[13] CB 97-100.
[14] CB 101-107.
[15] “Department”, now the Department of Immigration and Border Protection.
[16] CB 110.
[17] CB 121.
[18] CB 124-132.
[19] CB 133-146.
Tribunal Decision
In the Tribunal Decision the Tribunal found that:
a)Mr Johnson and his sponsor, Mrs Johnson, were married to each other under a marriage that is valid for the purposes of the Migration Act;[20]
b)it was not satisfied that the nature of the household demonstrated the existence of a spousal relationship between Mr and Mrs Johnson;[21]
c)it was not satisfied that Mr and Mrs Johnson represented themselves to other people as being married to each other or planned and undertook joint social activities;[22]
d)it was not satisfied as to Mr and Mrs Johnson’s mutual commitment to each other, degree of companionship and the emotional support they drew from each other or whether they saw their relationship as long-term;[23]
e)it was not satisfied that at the time of the Tribunal Decision Mr and Mrs Johnson had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing;[24] and
f)Mr Johnson did not meet the requirements of cl.801.221(2)(c) of Schedule 2 to the Migration Regulations 1994 (Cth),[25]
and therefore affirmed the Delegate’s Decision not to grant Mr Johnson the Partner Residence Visa.[26]
[20] CB 207 at para.17; Migration Act, s.5F(1) and (2)(a).
[21] CB 208 at para.29.
[22] CB 209 at para.34.
[23] CB 210 at para.40.
[24] CB 210 at para.41.
[25] “Migration Regulations”.
[26] CB 210 at paras.42 and 45.
The Tribunal dealt with the evidence in relation to the other aspects of the relationship as follows:
a)in relation to the financial aspects of the relationship noted that:
i)Mr and Mrs Johnson had separate bank accounts;
ii)neither Mr nor Mrs Johnson held a credit card;
iii)no joint assets were held and no joint liabilities were incurred by Mr and Mrs Johnson;
iv)because there was no work in Portland, where Mrs Johnson lived to be close to her children and grandchildren, Mr Johnson works in Perth;
v)Mr Johnson gives Mrs Johnson cash for rent of about $800 a month;
vi)Mr and Mrs Johnson have kept no documentary evidence of their income and expenditure;
vii)Mrs Johnson works in Portland but could not survive financially on her wage; and
viii)limited evidence of the pooling of financial resources and any sharing of day-to-day household expenses was provided to the Tribunal;[27]
[27] CB 208 at paras.20-23.
b)as to the nature of the household noted that:
i)Mr Johnson lives and works in Perth and returns to Portland for about five days every three to four weeks;
ii)Mr Johnson works as a truck driver for a company in Canning Vale, and lives with the owner of the company and his son;
iii)when asked to provide evidence of his return trips to Portland, Mr Johnson advised the Tribunal that he probably only has a few as he does not keep the paperwork, and he books his flights on a friend’s credit card (because he does not have one) and pays back his friend;
iv)Mrs Johnson has three children, including the youngest child who still lives at home, and two grandchildren who all live in Portland; and
v)little evidence was provided as to the nature of the household including living arrangements or sharing of housework,
and concluded, based on the limited evidence provided as to the nature of the household, that it was not satisfied that evidence demonstrated the existence of a spousal relationship between Mr and Mrs Johnson;[28]
[28] CB 208 at paras.24-29.
c)as to the social aspects of the relationship noted that:
i)in January 2014 letters had been provided to the Tribunal, by a work colleague who said that she had known Mr Johnson for a year and had seen him together with Mrs Johnson on visits to Perth, and had accompanied them to the casino one night after work, and by a person who claimed to have been a good friend of Mr and Mrs Johnson for the last three years and to have occasionally gone out for a night or for a barbeque with them;
ii)Mr Johnson spends as much time as possible with Mrs Johnson when he is home in Portland; and
iii)Mr Johnson said his wife had only been to Perth once, which prompted a request from the Tribunal for further evidence, firstly, including supporting statements with identification attached from family members, Mrs Johnson’s children, friends in Portland and the people that Mr Johnson lives with in Perth as to the genuineness of the relationship, and, secondly, confirming Mr Johnson’s regular travel to and from Portland, a request which resulted in nothing further being provided to the Tribunal,
and concluded, on a consideration of the conflicting and limited evidence provided, that it was not satisfied that Mr and Mrs Johnson presented themselves to other people as being married to each other, or that they planned or undertook joint social activities, and found that it was unable to test the opinion of friends and acquaintances about the nature of the relationship, and was therefore not satisfied that the social aspects of the relationship demonstrated the existence of a spousal relationship between the parties;[29] and
d)in relation to the nature of Mr and Mrs Johnson’s commitment to each other noted that:
i)Mrs Johnson had provided a letter to the Tribunal stating that she was still in a relationship with Mr Johnson even though he worked away most of the time because there was little work in Portland;
ii)on two occasions Mrs Johnson had not attended the Tribunal despite the importance of the hearing as it related to Mr Johnson’s ability to remain in Australia, and as a consequence Mrs Johnson did not attend before the Tribunal to provide any support or to give any evidence as to the genuineness of the relationship; and
iii)on the basis of the limited information before it the Tribunal considered there was little evidence to convince it that the relationship was genuine and continuing or that there was a a mutual commitment to the relationship on the part of Mr and Mrs Johnson.[30]
[29] CB 209 at paras.30-35.
[30] CB 209 at paras.36-38.
The Tribunal took into account evidence from Mr Johnson that he and Mrs Johnson had a different type of relationship,[31] but the Tribunal was not satisfied that Mr and Mrs Johnson had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship was genuine and continuing, and therefore the requirements of cl.801.221(2)(c) of Schedule 2 of the Migration Regulations had not been met.[32]
Consideration – extension of time application
[31] CB 210 at paras.39-30.
[32] CB 210 at paras.40-42.
Legislation and factors for consideration
Mr Johnson commenced these proceedings on 30 September 2014, after the expiration of the time limit prescribed by s.477(1) of the Migration Act, which had expired on 29 September 2014. The application is therefore incompetent unless the Court grants an extension of time under s.477(2) of the Migration Act which provides for an extension of time will only be granted if:
a)an application for an order for an extension of time has been made in writing to the Court specifying why Mr Johnson considers that it is necessary in the interests of the administration of justice to make that order; and
b)the Court considers it necessary, in the interests of the administration of justice to make an order for an extension of time.[33]
[33] Mpunzwana v Minister for Immigration & Anor [2009] FMCA 901 at [21] per Cameron FM, applied in Islam v Minister for Immigration & Anor [2013] FCCA 1687 at [12] per Judge Lucev (“Islam”).
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth)[34] provides that:
[34] “FCC Rules”.
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” includes:
a)the extent of the delay;
b)the reasons for it;
c)any prejudice to the Minister;
d)the impact on Mr Johnson;
e)the interests of the public at large;
f)any exercise of the Court’s discretion, and
g) the merits of the proposed Judicial Review Application.[35]
The list of factors is not exhaustive and whether particular factors are engaged depends on the facts of the particular case.[36]
[35] Quan v Minister for Immigration & Border Protection [2013] FCA 1239 at [22] per Farrell J (“Quan”) citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Singh v Minister for Immigration & Citizenship [2013] FCA 813 at [15]-[17] per Besanko J; SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 at [16] per Katzmann J; Li v Minister for Immigration & Anor [2011] FMCA 12 at [35] per Nicholls FM; McVey v Minister for Immigration & Citizenship & Anor [2012] FMCA 924; (2012) 269 FLR 379 at [20] per Lucev FM (“McVey”); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev (“WZASC”).
[36] Lindsay v Director of Professional Services Review & Ors [2011] FCA 262 at [20] per Edmonds J; McVey at [21] per Lucev FM.
Extent of and reasons for delay
In this matter the delay in seeking to make the application is one day. The delay, therefore, is absolutely minimal.
Mr Johnson filed an affidavit sworn by him on 30 September 2014,[37] but it does not explain the reasons for the delay as required by r.44.05(2)(c) of the FCC Rules. Mr Johnson’s Affidavit does not establish any absence at any relevant date, and therefore does not support the sole ground put forward by Mr Johnson in support of his application for an extension of time in which to make the Judicial Review Application, namely, that he only received the Tribunal Decision “when [he] arrived back in Perth from being with my wife in Victoria”.[38]
[37] “Mr Johnson’s Affidavit”.
[38] Application – Grounds of application for extension of time.
In Comcare v A’Hearn[39] the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”,[40] but, as the Federal Court has otherwise observed, the failure to provide any adequate explanation for the delay may, of itself, provide sufficient reason to refuse the extension of time sought.[41]
[39] (1993) 45 FCR 441 (“A’Hearn”).
[40] A’Hearn at 444 per Black CJ, Gray and Burchett JJ.
[41] SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J.
In this case there is, however, a rule, and unless compliance with the rule is dispensed with in the interests of justice,[42] the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”.[43] Therefore, absent such dispensation, the FCC Rules prescribe that there must be an explanation provided on affidavit as to the delay and as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time. In this case there is no such explanation in Mr Johnson’s Affidavit. Mr Johnson has therefore failed to satisfy the prescribed criteria for the Court to grant an extension of time. On this basis alone the extension of time application must fail.[44]
[42] FCC Rules, r.1.06(1): “The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules, at any time.”
[43] Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 at [35]-[40] per Lucev FM, and cases there cited, applied in WZASC at [9] per Judge Lucev.
[44] WZASC at [9] per Judge Lucev and Islam at [16] per Judge Lucev; contra SZTDM v Minister for Immigration & Anor (No. 2) [2013] FCCA 2060 at [10] per Judge Barnes (“SZTDM”): “…it is open to the Court to grant an extension of time under s.477(2) of the [Migration] Act notwithstanding non-compliance with r.44.05(2)(c) of the … [FCC] Rules if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.” It is not presently necessary to resolve the conflict, if there be one, between the above two lines of authority.
Even if there is no mandatory requirement for an affidavit explaining the delay and why it is necessary in the interests of the administration of justice to extend time,[45] there is still otherwise no satisfactory explanation for the delay in this case. There is no evidence as to the reason for the delay, and no evidence that Mr Johnson is in any different a position to other persons seeking judicial review of Tribunal decisions, the vast majority of whom file judicial review applications under s.476 of the Migration Act with this Court within time.
[45] SZTDM at [10] per Judge Barnes.
In all of the above circumstances, the Court does not consider that there has been any satisfactory explanation of the reasons for the delay, albeit that the delay is absolutely minimal.
Prejudice to the Minister
The Minister would be prejudiced by the granting of the extension of time as the Minister would be put to the cost of defending the Judicial Review Application which was otherwise out of time, and, for reasons set out below, a Judicial Review Application that has no reasonable prospect of success.
Impact on Mr Johnson
The impact on Mr Johnson of a failure to extend time for the making of the Judicial Review Application will be negligible, as, for reasons set out below, the proposed substantive Judicial Review Application has no reasonable prospect of success.
Interests of the public at large
This matter is determinable on existing well understood and explained legislation and applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large.
Exercise of the Court’s discretion
There is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Prospects of success and merits of proposed substantive Judicial Review Application
Legislative provisions
The relevant legislative provisions are set out hereunder.
Section 5F of the Migration Act defined ‘spouse’ at the time of the application as follows:
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Migration Regulations, sets out the arrangements for the purposes of determining whether one or more of the conditions in s.5F(2)(a), (b), (c) and (d) of the Migration Act exist for the purposes of s.5F(3) of the Migration Act, and relevantly provides as follows:
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) …; or
(b) …; or
(c) a Partner (Residence) (Class BS) visa; or
(d) …;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
Clause 801.211 of Schedule 2 to the Migration Regulations at the time the applicant applied for the Partner Residence Visa relevantly provided that:
801.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Spouse) visa by:
(i) the sponsoring spouse; or
(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c) the applicant is the spouse of the sponsoring spouse; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
As the Tribunal observed, Mr Johnson did not claim to meet, and there was no evidence that he met, any of the other requirements of cl.820.211 of Schedule 2 to the Migration Regulations.[46]
[46] CB 210 at para.43.
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[47] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act.[48]
[47] Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[48] Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ.
Grounds of Judicial Review Application
Mr Johnson relies on the following grounds in his application for judicial review:
I disagree with the Tribunal’s decision to use the non-appearance of my wife at the Tribunal as evidence that we are not in a relationship which is ongoing. Very unfortunate circumstances led to my wife not being able to attend on both occasions.
And as far as the lack of photos, letters, bills etc. neither of us have ever people (sic) of that nature unfortunately.
The Court will treat the two paragraphs as grounds 1 and 2 respectively.
Evidence
The evidence in Mr Johnson’s Affidavit, which is part fact and part submission, and which is set out in letter form as an attachment to Mr Johnson’s Affidavit, is as follows:
This Affidavits is to go with my application to the Federal Circuit Court disagreeing with the Migration Tribunals decision not to grant me a Partner Residence visa.
We disagree with the decision to use the absence of my wife from the Tribunal as evidence that our relationship is not ongoing.
Unfortunately the dates of the hearing co-insided with circumstances beyond our control which resulted in my wife being unable to attend. I asked the member conducting the tribunal for another hearing at which we are possitive my wife would be able to appear but this was refused.
As for the lack of photos, letters, bills, etc. we have never been the type of people to take photos, write letters, keep bills or records of any sort to be honest. As unconventional as this may sound, or seem, that is the truth. Obviously due to our current situation we wish we were more conventional but I’m afraid not everyone is of the same ilk.
We very much hope that the Tribunals decision can be overturned or at the least we get to convince the necessary people of our relationship.[49]
[49] Transcribed from the original without amendment.
It is relevant to note that Mr Johnson’s Affidavit did not specify what the “circumstances beyond our control” were, which prevented Mrs Johnson from attending the Tribunal hearing.
Ground 1
In relation to the attendance of both Mr and Mrs Johnson before the Tribunal, it is helpful to set out the relevant facts chronologically:
a)on 18 December 2013 the Tribunal wrote to Mr Johnson and requested that he provide evidence that he and Mrs Johnson were in a spousal relationship;[50]
[50] CB 149-152.
b)on 8 January 2014 Mr Johnson requested an extension of time within which to respond to the request for further information;[51]
[51] CB 152-153.
c)the Tribunal wrote to Mr Johnson on 14 January 2014 and advised him that he had been granted an extension of time to provide the requested information until 6 February 2014;[52]
[52] CB 154.
d)a number of witness statements were sent to the Tribunal by Mr Johnson and were received on 5 February 2014;[53]
[53] CB 155-162.
e)on 17 February 2014 the Tribunal sent Mr Johnson an invitation to give evidence and present arguments to it at a hearing scheduled to take place on 16 April 2014;[54]
[54] CB 163-164.
f)on 21 February 2014 Mr Johnson requested that the hearing take place in Melbourne rather than Perth as he and Mrs Johnson would be in Melbourne at that time;[55]
[55] CB 165-166.
g)on 4 March 2014 the Tribunal sent the applicant another invitation to appear before it, but this time advising that the hearing would be conducted by telephone with the Tribunal Member in Perth and Mr and Mrs Johnson in Melbourne;[56]
[56] CB 170-171.
h)Mr Johnson attended the hearing on 16 April 2014 but at the last minute the Tribunal was informed that Mrs Johnson would not be attending. The Tribunal advised Mr Johnson that it would like to take evidence from Mrs Johnson as to the nature of the relationship and its genuineness especially as there was little documentary evidence available. Accordingly, the hearing was adjourned;[57]
[57] CB 205 at para.4.
i)on 22 April 2014 Mr Johnson was sent a further invitation advising that the hearing had been adjourned to 19 June 2014.[58] That invitation clearly stated “The Tribunal may wish to take evidence from Helen Johnson. Please arrange for … [Mrs Johnson] to attend the hearing.”[59]
[58] CB 178-179.
[59] CB 178 (bolding in original).
j)Mr Johnson failed to attend the hearing on 19 June 2014;[60]
[60] CB 183-186.
k)on 20 June 2014 the Tribunal received a letter from Mr Johnson stating that he would be unable to attend the hearing on 19 June 2014 due to “being back in England following the sudden death of my father”;[61]
[61] CB 180-182.
l)on 23 June 2014 the Tribunal sent the applicant an invitation to comment or respond to the following in relation to his failure to appear at the hearing on 19 June 2014:
Movement records provided by the Department of Immigration and Border Protection indicate that you were granted a Bridging Visa B on 26 May 2014, departing Australia on 27 May 2014 and returning to Australia on 13 June 2014.
This information indicates that you were aware of the hearing prior to departing Australia and that you had returned to Australia seven days prior to the scheduled hearing despite the information contained in your letter which was postmarked just prior to your departure from the UK.
This information is relevant to the review as it indicates that you have not been truthful in your reasons for not attending the hearing scheduled on 19 June 2014 which may affect your credibility on other important aspects of your evidence.[62]
[62] CB 190-191.
m)the Tribunal requested Mr Johnson to provide a written response to this information by 16 July 2014;[63]
[63] CB 191.
n)Mr Johnson responded to this letter on 16 July 2014 and advised that:
i)he was upset following his father’s death;
ii)his mother needed him to be with her for the funeral and afterwards;
iii)he thought sorting out his father’s estate following the funeral would take longer than he expected but it didn’t; and
iv)he was upset and not thinking straight at the time;[64]
o)on 22 July 2014 the Tribunal sent Mr Johnson another invitation to appear at a hearing scheduled for 25 August 2014. Included in this letter was the following bolded statement “The Tribunal may wish to take evidence from … [Mrs Johnson]. Please arrange for … [Mrs Johnson] to attend the hearing”;[65]
p)on 7 August 2014 the Tribunal received a response to hearing invitation (dated 1 August 2014) in which Mr Johnson had ticked “yes” to the question “Will … [Mrs Johnson] be attending in person?”;[66] and
q)the Tribunal hearing proceeded on 25 August 2014, and Mrs Johnson did not attend.[67]
[64] CB 192-194.
[65] CB 195-196.
[66] CB 197-198.
[67] CB 199-202.
It was for Mr Johnson to make out his case before the Tribunal. The Tribunal’s role was to identify the material that it found relevant to its reasoning and to give it appropriate weight.[68]
[68] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
There is no evidence that Mr Johnson made a request for the hearing on 25 August 2014 to be adjourned or for further time to allow Mrs Johnson to attend at another time or to place additional evidence before the Tribunal.
Under s.363(1)(b) of the Migration Act, the Tribunal has power to adjourn the Tribunal hearing (as it did so on two occasions prior to 25 August 2014). The power is couched in permissive and not mandatory terms. The decision whether or not hearings should be adjourned are largely within the discretion of the Tribunal.[69]
[69] NBMB & Anor v Minister for Immigration & Citizenship & Anor [2008] FCA 149; (2008) 100 ALD 118 at [14] per Flick J.
In Minister for Immigration & Citizenship v Li & Anor[70] the High Court considered the discretionary power of the Tribunal to adjourn a hearing and determined that such power must be exercised reasonably.[71] In Li the High Court observed that under s.353(1) of the Migration Act the Tribunal is to act with some efficiency, but any such consideration would need to be weighed against the countervailing consideration of the purpose of s.360 and Part 5, Division 5 of the Migration Act. The High Court noted that:
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that ‘enough is enough’.[72]
[70] [2013] HCA 18; (2013) 249 CLR 332; (“Li”).
[71] Li at [63]-[76] per Hayne, Kiefel and Bell JJ.
[72] Li at [82] per Hayne, Kiefel and Bell JJ.
In this instance, as set out in the timeline above, Mr Johnson was plainly aware that establishing the nature of the relationship between he and Mrs Johnson, and hence the evidence of Mrs Johnson, were important factors to the success of his application before the Tribunal. This was evidenced by the correspondence from the Tribunal to Mr Johnson and the basis for the first adjournment of the Tribunal hearing. Given the history of the matter, it was open on the material before the Tribunal for it to decide to proceed to determine the matter on the evidence before it. It is not for the Tribunal to make good an applicant’s case.[73]
[73] SZRLB v Minister for Immigration & Border Protection [2014] FCCA 2851 at [29] per Judge Nicholls.
Ground 1 reveals no jurisdictional error by the Tribunal.
Ground 2
The Tribunal set out, assessed and weighed the evidence as to the nature of the relationship between Mr and Mrs Johnson, and determined that it was not a spousal relationship when regard was had to the definition of ‘spouse’ as set out above. When the Tribunal has set out, assessed and weighed the evidence in such circumstances it is not for this Court to re-exercise the Tribunal’s fact-finding power. To do so would be merits review not judicial review.[74] The Court also observes that the Tribunal was not obliged to accept all or any part of the evidence for Mr Johnson.[75] In general terms no jurisdictional error is established.
[74] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ; Toohey, McHugh and Gummow JJ.
[75] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265 at 278 per Beaumont J.
By applying the definition of “spouse” in s.5F of the Migration Act, and, in particular, by having regard to the conditions in s.5F(2) and (3) of the Migration Act for the determination of whether or not persons are in a spousal relationship, and the matters set out in reg.1.15A(3) of the Migration Regulations in order to determine if Mr Johnson met the definition of a ‘spouse’ for the purposes of meeting the requirements for a Partner Residence Visa under cl.801.211 of Schedule 2 to the Migration Regulations, the Tribunal had regard to the correct legal test and relevant considerations in order to assist it to determine the determinative factual issues in this case.
Ground 2 reveals no jurisdictional error by the Tribunal.
Conclusion – extension of time
It is well established that a court should not exercise a discretion to extend time, even for a short period, if the proposed substantive application has no prospect of success.[76]
[76] SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J, and the authorities there cited.
No jurisdictional error is disclosed by the Tribunal Decision. In the circumstances, the grant of an extension of time within which to make the Judicial Review Application is not in the interests of the administration of justice. The grounds of review therefore have no merit and no prospect of success, and do not warrant time for the making of the Judicial Review Application being extended.
Conclusions and orders
The Court has concluded that:
a)it is not in the interests of the administration of justice to extend time under s.477(2) of the Migration Act for the making of the Judicial Review Application, particularly given that it has no prospect of success; and
b)the application to extend time for the making of the Judicial Review Application ought to be dismissed.
It is unnecessary to make a further order that the proposed substantive application be dismissed as incompetent.[77]
[77] BZABK v Minister for Immigration & Citizenship& Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASC [23] per Judge Lucev.
For the above reasons the Court made the orders set out above on 16 March 2015.[78]
[78] See para.3 above.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 31 March 2015
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