Kai Ying Ma v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 402

FEDERAL COURT OF AUSTRALIA

Kai Ying Ma v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 402

MIGRATION – Application for leave to appeal - appeal bound to fail - application dismissed

Migration Act 1958 (Cth) s359A

Jess v Scott (1996) 12 FCR 187 referred to

KAI YING MA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 179 OF 2005

MARSHALL J
7 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 179 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	KAI YING MA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	7 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time and serve notice of appeal to be dismissed.

2. The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	179 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	KAI YING MA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	7 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, Kai Ying Ma, has applied for an extension of time in which to file and serve a notice of appeal from a judgment of a Federal Magistrate.  The Federal Magistrate dismissed the applicant's application for judicial review of a decision of the Migration Review Tribunal (“the MRT”).  The Federal Magistrate made an order on 8 February 2005 dismissing the application for judicial review.  On 9 March, the applicant filed the following documents in this Court:

• an application for an extension of time to file and serve a notice of appeal;

• an application for leave to appeal;

• affidavits of the applicant, his wife and his solicitor; and

• a draft notice of appeal.

1. The reasons of the Federal Magistrate for dismissing the application before him were not published until yesterday.  Given the very brief period that these reasons have been available my Executive Assistant and Associate urged the parties to file consent orders adjourning this hearing to allow all parties time to consider these reasons.  However, the solicitor for the applicant has insisted that the matter proceed as listed on the basis that the applicant has travelled from Tasmania to be in Melbourne for today’s hearing. 

2. In the short time that has been available, the Court has had the opportunity to peruse the reasons for judgment of the magistrate and has received an affidavit from the solicitor for the applicant in which he sets out the two points upon which he relies to demonstrate that there is error in his submission in the reasons of the Federal Magistrate.

3. The application for leave to appeal, filed by the applicant, is unnecessary as the judgment below was final and not interlocutory.  However, an extension of time is required for the filing and service of a notice of appeal because as at 9 March 2003 the applicant was eight days late in seeking to file a notice of appeal.  There is a 21-day time limit applicable in the circumstances.  Order 52 r 15(2) provides that “… the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal”.  “Special reasons” in O 52 r 15 was described by a Full Court in Jess v Scott (1986) 12 FCR 187 at 195 as:

   “… an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

4. The applicant stated in his affidavit that he failed to lodge his appeal within the time provided by the Rules of Court because his wife has been unwell and he had to "attend to her".  He said further that “the demands of her illness presented great personal stress which resulted in my overlooking the time factor requirement for the filing of the Notice of Appeal.”

5. In the applicant's wife's affidavit, the following is said at paragraph 6 and 7 thereof:

   “6My condition has been cause for stress and concern for my husband and this has resulted in him consistently having to attend to me, which has in turn resulted in his unintended poor attention to a number of his important matters; one being the filing of the notice of appeal.

   7Moreover, he was waiting for the reasons for judgment handed down by the federal Magistrate for his unsuccessful appeal at the Federal Magistrates Court, which did not arrive, and which threw him off guard concerning the time factor for his appeal.”

6. The matters referred to in the two preceding paragraphs of these reasons for judgment would ordinarily be sufficient to allow an extension of time, especially given the delay was only slightly over one week.  Although it would not be sensible to allow such an extension if the appeal was bound to fail.  It is to that question that the Court now turns.

7. The issues before the Federal Magistrate were contained in the three grounds relied upon by the applicant as were set out in the reasons for judgment of the Federal Magistrate at [7]. These are:

   “1.The criterion (sic) for the grant of the Partner   (Migrant)(Class BC) Sub-class 100 visa is set out in Schedule 2 of the Migration Regulation.  The Applicant has met all criterion (sic) for the grant of that visa and the Tribunal did not properly exercise its review jurisdiction.

   2.Officers of the Respondent used verbal force and threats as well as intimidation to force the Sponsor spouse to make an involuntary declaration against the Applicant and to revoke her sponsorship for migration by the Applicant. As such the declaration and revocation of sponsorship was illegally elicited from the sponsor spouse and hence is a contravention not only of the Migration Act and Regulations but also of the Common Law. The Applicant brought this to the attention of the Tribunal. However, the Tribunal ignored this consideration which it was bound to take into account.

   3.The Tribunal in disregarding this illegality of the declaration and revocation of sponsorship by the Sponsor, as well as affirming the decision of the delegate of the Respondent in not granting the Applicant his visa applied for, has breached its imperative duties as a forum of redress and review.  This falls within the ambit of a jurisdictional error of law which includes a breach of natural justice and/or procedural fairness.”

8. Before the Court, two grounds were relied upon to challenge the decision of the Federal Magistrate.  The solicitor for the applicant said that there may be more coming later and that Counsel would be briefed to develop further grounds, but I put to him and he accepted, that one consideration in whether leave should be granted to extend the time within which to appeal would be whether the case before the Court was one that was bound to fail or not.

9. Ultimately, the solicitor for the applicant was content to rely on the two grounds.  The first of these was that:

   “O'Dwyer FM did not take into account nor examine the issues of the relevant information which was raised by the Applicant, which was also not considered by the Tribunal, regarding the fact that at the time of decisions by both the delegate and the Tribunal the Applicant and sponsor wife was still legally married and had lived back together, to the exclusion of all others as husband and wife, which would have complied with the requirements of the Regulations and the Act in place. And the fact that as raised by Counsel, the delegate's decision being not open to discretion, must be examined fully by the Tribunal and the Federal Magistrates Court. This was never done.”

10. I first pause to say that what the Magistrate did was engage in a judicial review of the decision of the MRT.  To that extent the reasons of the Delegate were irrelevant.  The MRT found at the time of its reasons for decision that the relationship of the applicant and his wife was not a continuing relationship in that the applicant on his own evidence had been in a longstanding relationship with another woman.  Consequently it did not find that the applicant qualified for a spouse visa.

11. The matters raised in the first purported ground of appeal from the decision of the Magistrate essentially, as was ultimately conceded by the solicitor for the applicant, addressed questions of fact.  These matters clearly do not disclose any judicial error or raise any question of jurisdictional error by the MRT and do not disclose any legal error in the judgment of the Federal Magistrate which would be properly reviewable by this Court, in the sense that it would find error in his Honour’s reasons.

12. The second issue relied upon this morning on behalf of the applicant, as taken from the affidavit of his solicitor, is the following:

    “Moreover, the decision to summarily disbelieve the genuine nature of the marriage based on merely answers to questions, and the fact that the couple was found to be living apart at one time in the marriage, without allowing the Applicant proper explanation and not calling for clarification by the Applicant, constitutes a transgression on the requirements of the Regulations and the Act, which therefore ensures that there is a breach of the rules of Natural Justice, and a jurisdictional error in itself, being that the decisions were biased, preconceived and personally contrived without basis. There were proper reasons for the discrepancies on the part of the Applicant and the sponsor, and opportunity was not given for these to be canvassed. And this is a travesty upon the requirements of the Regulations, the Act and the spirit and principles of the rules of Natural Justice. Further elucidation to be provided at hearing.”

13. It can be seen from the terms of the third paragraph of the amended application before the Federal Magistrate, referred to above at [8] above, that the issue of the revocation of the sponsorship of the applicant was a matter that was said to fall within the ambit of “a jurisdictional error of law which includes a breach of natural justice and/or procedural fairness.”

14. The MRT found that the revocation of the withdrawal of the sponsorship was concocted.  It is implicit in that rejection that it believed that the original withdrawal of the sponsorship by the applicant’s wife was genuine.  The issue raised by paragraph (b) of the submissions of the applicant this morning essentially seeks to disturb those factual matters found by the MRT.  It is difficult to understand how natural justice properly falls within the ambit of that point.  In fact in his reasons for judgment the learned Federal Magistrate did not advert to the issue of natural justice, save to set out the third ground of review before him.  The simple point is that the sponsor withdrew her sponsorship and claimed later that she had been forced into doing so and sought to revoke that withdrawal.

15. The MRT did not accept the applicant as a witness of the truth and did not accept that the revocation of the withdrawal was genuine and in fact found that it was made at the insistence of the applicant.  These are matters of merit upon which it was open to the MRT to find facts as it saw fit.  There is no basis whatsoever to imply into this factual situation any suggestion that the MRT in some way breached the rules of natural justice and/or procedural fairness.

16. The learned Federal Magistrate did not deal with, and as far as I can ascertain, no question was put to him about the MRT being actually biased.  In any event, even if such matter was put to him, there is nothing on the face of the reasons before the MRT to sustain that accusation which must be made on very clear material.  Any material of the kind necessary to support such a ruling by the Court is not present in the current circumstances.

17. There was before the Federal Magistrate, as recorded at [8] of his reasons, an argument based on s 359A of the Migration Act 1958 (Cth) (“the Act”). His Honour rightly found that under s 359A(4)(b) of the Act there is no obligation to put documents to the applicant that the applicant has actually supplied.

18. The grounds for review, recorded at [7] of the Federal Magistrate's reasons, deal essentially with three issues, although the first, when it is carefully considered, is a non-issue.  It merely asserts that the criteria for the grant of the visa was made out.  That begs the question that had to be determined.  The second ground of review raised a question of alleged use of verbal force and threats and intimidation to force the sponsor to make an involuntary declaration.  That is not a matter that is dealt with in either paragraph (a) or (b) of the submissions before the Court this morning put by the applicant’s solicitor.  The third issue ground of review goes to the illegality of the declaration of revocation of the sponsorship by the sponsor.  That, also, was not a matter adverted to by the applicant’s solicitor this morning.

19. As the appeal is doomed to fail, the Court orders that the application for an extension of time within which to appeal from the judgment of the Federal Magistrate be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             7 April 2005

Counsel for the Applicant	Mr D Cheung
Solicitor for the Applicant:	David K Kin Cheung
Counsel for the Respondent	Mr B Wee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 2005
Date of Judgment:	7 April 2005