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 |
| 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…
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Details
- Case
- [2015] FCCA 610
- Decision Date
CaseChat Overview and Summary
The applicant, Mr. Johnson, sought judicial review of a decision by the Migration Review Tribunal. The dispute concerned Mr. Johnson's application for a Partner (Residence) visa and his subsequent failure to comply with the Tribunal's requests for information and attendance at hearings, particularly concerning the genuineness of his spousal relationship with Mrs. Johnson. The matter came before Judge Antoni Lucev of the Federal Circuit Court of Australia.
The primary legal issue before the Court was whether to grant Mr. Johnson an extension of time to file his application for review. This required the Court to consider the merits of the proposed review, the reasons for the delay in filing, and other relevant factors in determining whether to exercise its discretion to extend time. The Court also had to assess the applicant's conduct throughout the Migration Review Tribunal process, including his explanations for failing to attend scheduled hearings and provide requested evidence.
In dismissing the application for an extension of time, the Court implicitly found that the merits of the proposed review did not warrant such an extension, particularly in light of the applicant's conduct. The chronological account of events demonstrated a pattern of non-compliance and questionable explanations for absences from hearings, including the Tribunal's specific requests for evidence from Mrs. Johnson regarding the spousal relationship. The Court noted discrepancies between the applicant's stated reasons for absence and his travel movements, which raised concerns about his credibility.
The Court ordered that the application for an extension of time be dismissed, with reasons to be delivered at a later date. Mr. Johnson was also ordered to pay the first respondent's costs in the sum of $3416 by 30 May 2015.
The primary legal issue before the Court was whether to grant Mr. Johnson an extension of time to file his application for review. This required the Court to consider the merits of the proposed review, the reasons for the delay in filing, and other relevant factors in determining whether to exercise its discretion to extend time. The Court also had to assess the applicant's conduct throughout the Migration Review Tribunal process, including his explanations for failing to attend scheduled hearings and provide requested evidence.
In dismissing the application for an extension of time, the Court implicitly found that the merits of the proposed review did not warrant such an extension, particularly in light of the applicant's conduct. The chronological account of events demonstrated a pattern of non-compliance and questionable explanations for absences from hearings, including the Tribunal's specific requests for evidence from Mrs. Johnson regarding the spousal relationship. The Court noted discrepancies between the applicant's stated reasons for absence and his travel movements, which raised concerns about his credibility.
The Court ordered that the application for an extension of time be dismissed, with reasons to be delivered at a later date. Mr. Johnson was also ordered to pay the first respondent's costs in the sum of $3416 by 30 May 2015.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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; andiv)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] andq)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.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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