Kaur v Minister for Home Affairs
[2019] FCCA 1123
•2 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1123 |
| Catchwords: MIGRATION – Extension of time in which to seek judicial review of Tribunal decision affirming refusal of Partner visa – applicant’s sponsor withdraws support for application – Tribunal finds criteria for application not made out – no evidence adduced before Tribunal capable of meeting criteria for family violence – application for review made more than a year after expiry of time –application lodged after application for Ministerial intervention declined – applicable principles – explanation for delay inadequate – no prejudice – merits of proposed grounds of review – Tribunal bound to find that criteria for Partner visa not satisfied as no sponsor for application – family violence not open on the evidence before the Tribunal – complaint as to negligent advice did not vitiate Tribunal’s decision – no evidence applicant’s medical condition capable of supporting conclusion that she was not afforded real and meaningful opportunity to present evidence or arguments on review – certificate under s 375A invalid – no warrant for concluding that there was any reasonable possibility of different outcome – no utility in further hearing. |
| Legislation: Evidence Act 1995 (Cth), s.140 Migration Act 1958 (Cth), ss.5F, 65, 375A, 425, 476 Migration Regulations 1994 (Cth), regs.1.22, 1.23, Sch 2 cl 801.111, 801.221 |
| Cases cited: AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358 BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 BIE15 v Minister for Immigration and Border Protection [2016] FCCA 2978 Briginshaw v Briginshaw (1938) 60 CLR 336 CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 Fareed v Minister for Immigration and Border Protection [2016] FCCA 1179 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kio v Minister for Home Affairs [2019] FCA 579 Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | AMARJIT KAUR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1011 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 26 April 2019 |
| Date of Last Submission: | 26 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 May 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Hosking |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended in the title of the proceeding to the Minister for Home Affairs.
The application filed on 16 May 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1011 of 2016
| AMARJIT KAUR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 16 May 2016, the applicant seeks an extension of time within which to apply for judicial review of a decision of the then Migration Review Tribunal (Tribunal) that was made on 25 March 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Residence) (Class BS) visa (a Subclass 801 visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
Background
The matter has a somewhat elongated history. The applicant, a 32 year old citizen of India, arrived in Australia with her first husband on 29 December 2007. The applicant began but did not complete a course in horticulture in Mildura. Her first husband died in a car accident.
The applicant moved to Colignan, Victoria, in 2010 where she met an Australian citizen, Hossein Poursafian (sponsor) when she accompanied her friend, Manjit Kaur, to the sponsor’s home to collect his rent.
On 8 December 2010, the applicant and sponsor were married.
On 14 December 2010, the applicant applied for:
a)a Partner (Temporary) (Class UK) (Subclass 820) visa; and
b)a Partner (Residence) (Class BS) (Subclass 801) visa.
The application for a Partner visa was made on the basis of the applicant’s relationship with her then sponsor. From her application, it appeared that her sponsor was of Iranian birth and born in 1958.
On 11 March 2011, the applicant’s migration agent provided the Department with a number of documents, including the applicant’s Indian National Police Clearance Certificate, bank statements and a signed statement made by the sponsor titled “History of the relationship”.
On 19 August 2011, the Department wrote to the applicant requesting more documents to provide evidence that the applicant and sponsor were living together. On 19 September 2011, the applicant’s migration agent provided the Department with more documents including a Telstra tax invoice, Medibank tax invoice/receipt and various academic certificates.
On 18 May 2012, the Department granted the applicant a Partner (Temporary) (Class UK) visa.
On 21 February 2013, a Departmental case officer conducted telephone interviews with the applicant and sponsor.
By letter dated 21 February 2013, the Department noted a number of discrepancies with the applicant’s answers in her telephone interview. The Department also provided the applicant with an opportunity to comment on information it had received that her marriage had been arranged for the purpose of the applicant obtaining permanent residence.
On 5 March 2013, the applicant’s migration agent provided the Department with statements made by the applicant and sponsor accompanied by various photographs.
On 17 December 2013, the Department invited the applicant to comment on information that: (a) indicated inconsistencies in the versions of events as recounted by the applicant and her sponsor at interview; and (b) did not support the applicant’s application for a Partner visa.
On 31 December 2013, the applicant’s migration agent provided the Department with further statements from the applicant and sponsor and which answered the queries raised by the Department at [12] above.
On 30 April 2014, a delegate of the Minister refused the application for a Partner (Residence) (Class BS), or Subclass 801, visa.
At the relevant time, cl 801.221 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) provided the primary criteria for the grant of a Subclass 801 visa. Relevantly, cl 801.221(2) provided that:
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 (Partner) visa by:
(i) the sponsoring partner; 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 or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
The expression sponsoring partner was defined by cl 801.111 and relevantly included that that person was an Australian citizen and the spouse of the applicant. The term spouse is defined by s 5F.
The delegate refused the Subclass 801 visa application, not being satisfied that the applicant had provided convincing evidence of her commitment to the relationship. The delegate found that the applicant did not meet the requirements of cl 801.221(2), as she was not the spouse of her sponsor within the meaning of s 5F of the Act.
On 9 May 2014, the applicant lodged an application with the Tribunal for review of the delegate’s decision to refuse to grant her a Subclass 801visa
On 3 November 2014, the sponsor notified the Department that the applicant had left him and that he was withdrawing his sponsorship of her application. The sponsor stated that he had only seen the applicant once since the date that she had left him in 2013 and that when he had asked for an explanation for why she had left, her reply had been that she would “contact me to explain it all but [she] hasn’t made any contact.” He stated that he wished to cancel his sponsorship of the applicant and apply for a divorce.
By letter dated 5 February 2015, Tribunal invited the applicant to comment on or respond to the information received from the sponsor above that he was no longer in a relationship with her, stating:
The particulars of the information are:
·You lodged an application for review, in relation to a decision to refuse to grant a Partner (Residence) (Class BS) visa, on 9 May 2014.
·On 7 November 2014 the Tribunal received a letter from your sponsor advising that he was no longer in a relationship with you and that he wished to withdraw his sponsorship.
This information is relevant to the review because it indicates that you are no longer in a spousal relationship with the sponsoring spouse. Subject to your comment or response, this information may lead the Tribunal to find that you do not satisfy the criteria for the visa, and this would be a reason or part of a reason, for affirming the decision under review.
On 19 February 2015, the applicant’s migration agent provided the Tribunal with a statement outlining that the applicant and sponsor had “temporarily separated after having had some arguments”, but that the applicant had never wanted to permanently cease their marriage. The applicant sought an adjournment or extension of one month so that she could reunite with her sponsor after sorting out their temporary differences.
On 23 February 2015, the Tribunal invited the applicant to attend a hearing on 25 March 2015 to give evidence and present arguments relating to the decision under review. It provided the applicant with a pro forma Response to that hearing invitation.
On 24 March 2015, the applicant furnished a submission to the Tribunal advising it that she did not wish to give oral evidence, and would instead rely upon her written submissions. Attached to her submission was the pro forma Response to that hearing invitation, duly completed, which stated that the applicant would not appear at the hearing. The applicant confirmed that she had signed each of those documents. Her written submission included the following:
I was living with my partner in genuine spousal relations for the last about four years and our marriage was legal and valid. Our life was going smoothly. We had some arguments on one day and it took bad shape. I was abused and given life threats by my partner. We decided to live temporarily separate from each other. My partner further extended threats to get my visa cancelled also, I did not report the matter to police for witness for domestic violation as never wish to break-up my relationship with loving partner and remained silent for cool down. But somehow this matter could not compromise between us.
The applicant did not appear before the Tribunal. On 25 March 2015, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a Partner visa. In a written statement of reasons (Reasons) the Tribunal found that as the sponsor had withdrawn his sponsorship, the applicant did not satisfy a criterion for the grant of a Partner visa: [13]. It also found that the applicant did not satisfy other criteria being: the death of her sponsor; family violence; or that the applicant and sponsor shared custody of a child: [14]-[18] (the sponsor was alive and they had no children). The Tribunal noted the applicant’s claim to have been the victim of family violence, but found that the criteria for the grant of a visa on this basis were not satisfied: [17].
On 16 April 2015, the applicant sought Ministerial intervention. On 6 April 2016, the application was finalised without referral to the Minister as it did not meet the applicable guidelines.
Procedural history
On 16 May 2016, the applicant filed an application for judicial review of the Tribunal’s decision. As the application was more than a year out of time, the applicant sought an extension of time within which to file it.
The applicant swore an affidavit to which she exhibited the Tribunal’s Reasons but which adduced no further evidence on the application.
By a Response filed on 23 May 2016, the Minister sought dismissal of the application on the bases that it was out of time, that it was not established to be in the interests of the administration of justice to extend the time for the filing of the application and that the Tribunal’s decision was not affected by jurisdictional error.
The matter was listed for directions on 12 October 2016. On that date orders were made, by consent, listing the matter for final hearing. Further orders were made regulating the filing by the applicant of any amended application, affidavits and written submissions.
On 16 November 2016, the applicant filed an application providing further grounds for an extension of time supported by an affidavit in which she alleged she had been badly represented in her Tribunal application with the result that matters relating to a claim of family violence had not been properly addressed. Beyond the bare assertion that she had been badly represented, the affidavit did not descend to furnish any evidence as to why that was said to be so. The applicant also deposed that she had been unwell mentally and sought relief in this court.
Annexed to the applicant’s affidavit was a submission which reiterated her history of the matter and sought that the court consider her personal circumstances.
On 15 December 2016, orders were made at the applicant’s request adjourning the matter in order that could obtain legal advice. The application was adjourned to the first available date following the determination by the High Court of the appeal in Minister for Immigration and Border Protection v Singh & Anor [2017] HCATrans 107. The Minister’s application for special leave to appeal the decision in was dismissed: (2016) 343 ALR 97.
On 15 January 2018, the solicitor for the Minister swore an affidavit which exhibited documents containing third party information subject to a “Certificate and Notification Regarding the Disclosure of Certain Information Only to the Migration Review Tribunal Under s 375A of the Migration Act 1958”. The affidavit deposed that those documents had been supplied to the applicant before that affidavit had been affirmed.
On 15 January 2018, the Minister filed written submissions.
On 29 January 2018, orders were made in chambers, by consent, adjourning the application which was listed for final hearing on that date whilst the applicant sought legal representation. In February 2018, orders were made allowing the applicant a further opportunity to file any submissions.
The application was finally listed for hearing on 26 April 2019.
On 23 April 2019, the applicant transmitted an email to the Minister’s lawyers seeking an adjournment on the basis that she sought further time to obtain a report from a psychologist. Annexed to the email were two medical records which variously confirmed that: (1) the applicant had last been prescribed medication in November 2016 and that she had been diagnosed with anxiety in 2010 and depression in 2013; and (2) the applicant had consulted a medical practitioner in January 2018 and been treated for anxiety and for depression arising from a relationship difficulty with her second husband.
On 24 January 2019, the Minister’s lawyer replied and did not agree to the request for an adjournment.
The applicant appeared before me with the assistance of an interpreter. As she was self-represented, I have re-examined the court book, her submissions and the Tribunal’s Reasons.
Applicable principles – extension of time
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). The power to extend time is expressed as being subject to two conditions: (1) an application has been made in writing for such an extension; and (2) the court is satisfied that it is necessary in the administration of justice to do so.[1] The first of those conditions was met by the request for an extension as made in the application for judicial review. The second condition is in issue.
[1]For the avoidance of doubt, the 35 day time limit commences to run from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to extend time for the commencement of proceedings is a broad one.[2] It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted and the merits of the substantive application.[3] While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored.[4] Equally, the discretion conferred recognises that there will be cases in which, although no prejudice will be sustained by the Minister, there may be dire consequences for an applicant in losing a right of review.
[2] Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25].
[3]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
[4] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348.
Consideration
The applicant needed to lodge her application for judicial review by no later than 29 April 2015. Instead, as the application is more than a year out of time, an extension of time is required. The grounds for the application for an extension of time were articulated in the application by the applicant who was at that time, and remains, self-represented.
The applicant’s grounds for seeking an extension of time were set out in her application filed on 16 May 2016 where she stated:
I had a very bad time in the past since after the refusal of my second stage partner visa. Even before that I was being maltreated and threatened by my partner. I was making efforts to save my relationship as it will be a stigma on me in Indian society. I was not having any work rights and staying home. So I went in depression during this period. It was hard for me to survive in Australia. I was not having sufficient savings with me to pay the fee and charges of Federal Court. Due to these reasons, I got delayed in lodging my application before Federal Court. I have compelling and compassionate reasons.
Those grounds for seeking an extension of time were incorporated by reference in the applicant’s amended application which was filed on 16 November 2016. As counsel for the Minister submitted, the grounds for seeking an extension of time were expanded upon in the applicant’s further affidavit filed on 16 November 2016 and which exhibited her submissions.
Explanation for delay & prejudice
The Minister submitted correctly that the delay in making application for judicial review was significant and that no adequate explanation for the delay had been proffered.
Contextually, the application was only lodged in this court after the application for Ministerial intervention had been finalised. The making of an application for Ministerial intervention does not adequately justify a failure to make application for judicial review in a timely manner.[5]
[5]MZZVK v Minister for Immigration and Border Protection [2016] FCA 854, [46]; Fareed v Minister for Immigration and Border Protection [2016] FCCA 1179, [15]-[20].
Although the applicant claimed that she did not have sufficient resources to pay the filing fees required to lodge the application in this court, she provided no evidence of whether she took steps to seek an exemption from paying those fees on the ground of financial hardship. Again, the applicant was on notice (from the service of the Minister’s submissions in January 2018) that the absence of such evidence would be relied upon. I also accept that financial hardship is not, in itself, an acceptable explanation for delay in seeking judicial review.[6]
[6]CfSZHPJ v Minister for Immigration and Multicultural Affairs [2006] FCA 1467, [16]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [6].
In relation to the applicant’s reliance upon her mental health issues, I accept also that the applicant provided no evidence about why her difficulties prevented her from filing an application for judicial review for over a year, particularly in circumstances where she had been represented by her migration agent both before the Tribunal and in connection with her application for Ministerial intervention.
While the Minister accepted that there would not be any prejudice to the Minister in responding to the application if the court were to grant an extension of time, it was said that the absence of prejudice was not enough to justify the grant of an extension of time.[7]
[7]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349; SZSQL v Minister for
Immigration and Border Protection [2015] FCA 294, [15].
Merit of substantive application
The Minister opposed the application on the substantive basis that there was insufficient merit in the proposed grounds of review to warrant an extension of time. Expressed in positive terms, if the court concluded that there was no arguable merit to the substantive application, it will not be in the interests of the administration of justice to exercise the power to grant an extension of time.
As the authorities indicate, if an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[8] MZABP v Minister for Immigration and Border Protection.[9] Whether an extension of time is granted will depend upon the particular circumstances of each case: Mentink v Minister for Home Affairs.[10]
[8][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[9][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
[10] [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive. Her Honour stated:[11]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[12]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
See also Kio v Minister for Home Affairs.[13]
[11][2015] FCA 1391, [62]-[63].
[12](1998) 195 CLR 516 at [7]-[9].
[13] [2019] FCA 579, [4], [10].
These statements reflect the reasoning in Spencer v Commonwealth.[14] There the case sought to be brought by the plaintiff was dismissed summarily by the primary judge whose decision was affirmed by a Full Court. Spencer’s claim was that certain restrictions which had been placed over his property constituted the acquisition of property other than on just terms. However unusual or ambitious the claim might have appeared, the High Court held that the argument could not be considered to have no reasonable prospect of succeeding in circumstances where a similar claim had been reserved for future consideration in another appeal to that Court. The plaintiff was held to be entitled to proceed to trial. While the claim was ultimately dismissed,[15] the approach taken in Spencer illustrates the lower threshold which applies in deciding whether a case should be regarded as being arguable (whether sufficiently or reasonably) or to have sufficient prospects of success. The decision is instructive, whether the application be for summary judgment, for reinstatement or an extension of time.
[14](2010) 241 CLR 118.
[15]Spencer v Commonwealth [2015] FCA 754 (Mortimer J).
As the applicant was self-represented, I have considered the grounds of review as stated in her original and amended application.
a)the original grounds of the application read:
Judicial error in AAT Review and DIBP decision for failure to consider my genuine spousal relations during second stage of my application for a Partner visa subclass 801. My compelling and compassionate circumstances were not kept under consideration by the deciding authorities, which were in existence during the pendency of the case. I was maltreated and threatened by my partner. I did not break up my relations and made efforts to continue my relations. I did not initiated proceedings for domestic violence as I never wish lead life with this stigma of broken relationship to lower my family esteem in Indian society, I realised that my partner adopted the policy of use and throw like a commodity to me, when I loved him very much. But the delegate and review authorities did not consider my compelling and compassionate circumstance beyond my control.
b)the later grounds of the amended application read:
THE TRIBUNAL HAS MIUSUNDERSTOOD [sic] AND MISAPPLIED THE RELEVANT REGULATIONS IN MY CASE. THE TRIBUNAL HAS FAILED TO TAKE INTO CONSIDERATION OR HAS FAILED TO UNDERSTAND RELEVANT INFORMATION PRESENTED IN MY SUBMSION [sic].
Particulars:
In my case I provided relevant information which is supportive of the claims for my personal circumstances with regards to my marriage relationship
In my personal submission I have indicated that I have suffered family violence
At paragraph 17 of the Tribunal decision the Member clearly identifies that family violence has taken place during the course of the marriage.
The Tribunal has failed in its duty to make a finding on facts. The evidence was available but was not provided as required. The Tribunal did not offer me procedural fairness given my circumstances as a woman who has suffered family violence and moreover as I was not in attendance the Tribunal made a finding without the facts on the family violence maters [sic] that I had presented in my submission.
In failing to offer me procedural fairness the Tribunal did not show flexibility or discretion to request of me the necessary documents on which to make a finding. I was not represented and did not attend the hearing due to inadequate and poor guidance.
Essentially, the applicant appears to allege that the delegate and then the Tribunal failed to take into account her circumstances in making its decision. She also sought to ground her claim on the basis of a failure of the Tribunal to consider her claims of family violence. The applicant also contended that she had been badly advised and badly represented by her migration agent in connection with her application to the Tribunal.
This court generally has no jurisdiction to consider the decision of the delegate to refuse a visa application: s 476(2)(a). To the extent that the court may conduct judicial review its jurisdiction is relevantly confined to the review of a Tribunal decision.
Clause 801.221(2)(b) required that the applicant continue to be sponsored for the grant of the Subclass 820 visa by her sponsoring partner. The Tribunal made the only decision that was open to it in concluding that the applicant did not continue to be sponsored by a sponsoring partner: cl 801.221. Sponsorship had been withdrawn.
Family violence
The Minister accepted that the applicant’s proposed ground of review appeared to allege that the Tribunal had erred by failing to consider whether the applicant met the requirements of cl 801.221(6)(c)(i), which would apply if the applicant had suffered family violence committed by the sponsoring partner. Family violence is a defined concept.
Clause 801.221(6) provided that:
An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) . . .
has suffered family violence committed by the sponsoring partner;
(ii) . . .
In so far as the question of family violence was concerned, I have re-examined the submissions filed by the applicant with the Tribunal. The applicant explained that her relationship with her sponsor had been going well for some years but that things took ‘bad shape’ and stated that the parties decided to live separately. The applicant submitted that she had not reported the matter to police, in part because the sponsor had made threats to cancel her visa and because she had hoped to reconcile. In her submission to this court, the applicant appears to blame her migration agent for failing to advise her of the statutory requirements for establishing a claim for family violence.
The Tribunal did not fail to consider that applicant’s circumstances and recognised that she had made claims of family violence: [11], [17]. The Tribunal found that the applicant’s claims to have suffered family violence committed by the sponsoring partner were not sufficient to meet the requirements of cl 801.221(6)(c)(i), as the applicant had not submitted evidence in a form that satisfied the requirements set out in the Regulations.
The Reasons may fairly be understood as recognising that the Regulations make provision in relation to family violence. In Div 1.5 of the Regulations, which is headed Special provisions in relation to family violence, reg 1.22 provided at the relevant time that:
(1)A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
(2)A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person.
Regulations 1.23-125 prescribe criteria by which family violence may be established for the purposes of a partner visa application.
The Tribunal correctly found that the references in the applicant’s submissions to abuse and threats by her former sponsor did not satisfy the requirements of any of sub-pars reg 1.23(1)-(14) of the Regulations. There was no evidence that an injunction had been made under the Family Law Act 1975 (Cth) or any other court order against the sponsor. Nor was there evidence that the sponsor had been convicted of any relevant offence. Further, none of the criteria for a non-judicially determined claim of family violence were made out: regs 1.23-1.25. In those circumstances, the Tribunal could not have been satisfied that the applicant had ‘suffered family violence committed by’ her former sponsor. The Tribunal could only have been so satisfied where the requirements of reg 1.23 were met. They were not.
I agree in the Minister’s submission that on the material before the Tribunal, the only course open to the Tribunal was to find that the applicant did not meet the requirements of cl 801.221(6)(c).
The Tribunal correctly concluded that the applicant had not satisfied the statutory requirements for a claim of family violence. The Tribunal made the only decision that was open to it on the material before it.
The primary proposed ground of review is without merit.
Bad advice
As noted, the applicant’s second proposed ground of review is that she had been ‘badly advised’ and ‘badly represented’ by her migration agent in connection with her application to the Tribunal.
Bad or negligent advice given to an applicant in connection with a decision of the Tribunal will not, without more, vitiate a Tribunal’s decision.[16] However, fraudulent conduct by a migration agent in connection with a proceeding before the Tribunal may, in some circumstances, vitiate a Tribunal’s decision.[17] Fraud is a serious matter that must be proved clearly, strictly or with certainty.[18]
[16]CfSZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, 207 [53].
[17]CfSZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
[18]Briginshaw v Briginshaw (1938) 60 CLR 336, 362; s 140(2)(c) Evidence Act 1995 (Cth).
The applicant’s allegations about the conduct of her migration agent rise no higher than allegations that she received bad or negligent advice. They provide no basis for an allegation that the decision of the Tribunal is affected by jurisdictional error.
The second proposed ground of review is without merit.
Medical condition at time of hearing
The applicant’s submissions may also be understood as involving a contention that she had been denied a meaningful hearing. By s 425, the obligation to provide a ‘real and meaningful’ invitation to a hearing exists whether or not the Tribunal is aware of the actual circumstances which may defeat that obligation. On rare occasions, the occurrence of events which may be unknown to, or beyond a Tribunal’s control may result in jurisdictional error by a Tribunal for a failure to observe the requirements of s 425: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR.[19]
[19](2003) 128 FCR 553, [37] (Gray, Cooper and Selway JJ).
As the background to this case demonstrate, the applicant was invited by the Tribunal to a hearing to present arguments and evidence in relation to the issues arising on the delegate’s decision to refuse her application for a permanent Partner visa. The applicant responded to that invitation in three ways. First, she lodged a submission which she said had been prepared by her migration agent. While she claimed that she had not read it, the submission contained facts and circumstances that were consistent with those which she had later filed in this court. Secondly, the applicant completed and signed a Response to the hearing invitation confirming that neither she nor her agent would not appear. Thirdly, the applicant did not appear at the scheduled hearing.
The present application is to be distinguished from those in which a person is denied a meaningful opportunity to present evidence and advance arguments by reason of a medical infirmity. The applicant had been able to furnish instructions to her migration agent sufficient to provide a written submission to the Tribunal. The Tribunal was not obliged to press the applicant to call further evidence of her psychological issues or to expand on her arguments relating to her claim to family violence or any underlying medical issues: Minister for Immigration and Border Protection v SZNVW.[20]
[20](2010) 183 FCR 575, [20], [22] (Keane CJ, Emmett J agreeing).
While I entertain doubt whether the applicant advanced a free standing ground that she was unfit to pursue her case before the Tribunal, there was no evidence that any symptoms of anxiety or depression she may have experienced were such as to disable her substantially from making decisions in her own interests in relation to the application. On the evidence before me, I can make no finding that any psychological condition denied the applicant an opportunity to give evidence or present arguments in support of her application: SZNVW.[21] There was no basis on which the Tribunal could have considered any question of the applicant’s lack of fitness to participate in the hearing. Nor can I conclude that the Tribunal’s invitation to the applicant to present arguments or adduce evidence was subverted[22], or that the Tribunal’s function of review had been stultified or frustrated.[23]
[21](2010) 183 FCR 575, [15], (Keane CJ, Emmett J agreeing), [74], (Perram J).
[22] SZNVW, [75], [83], (Perram J).
[23] SZNVW, [87], (Perram J).
Insofar as the applicant sought to rely upon the first instance decision in SZNVW v Minister for Immigration and Border Protection,[24] I have considered the paragraphs to which attention was drawn. However, it is sufficient to recognise that the Full Federal Court allowed that appeal.
[24] SZNVW v Minister for Immigration and Citizenship [2009] FMCA 1299, [52]-[54] (Smith FM).
The Full Court’s reasoning in SZNVW has been followed on frequent occasions. In particular, in Minister for Immigration and Citizenship v SZNCR,[25] Tracey J said:
Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her 'entirely unfit' to attend a Tribunal hearing and answer questions cannot be held to have been denied a 'real and meaningful' opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing. (emphasis added)
Tracey J held that:
. . . [the] mere possibility that the Tribunal, had it been aware of an applicant's mental state, may have formed a different conclusion about the applicant's credibility is not sufficient to establish a contravention of s 425(1).
Special leave to appeal was refused: SZNCR v Minister for Immigration and Citizenship [2012] HCASL 26 (Heydon and Bell JJ).
[25] [2011] FCA 369, [30].
I note that the evidence adduced and submissions before me concerning the applicant’s anxiety and depression relied on matters which had occurred in early 2018. The applicant had been afforded several opportunities in this court to furnish evidence and submissions in relation to the matter. The applicant’s claim to suffer a mental health condition of such a kind as to disable her from having a meaningful opportunity to present arguments and evidence at the Tribunal is rejected.
Certificate under s 375A
The Minister, in the role of model litigant, advanced further submissions having regard to the circumstance that the applicant was self-represented and drew attention to the certificate purportedly issued under s 375A. The Minister accepted that the purported certificate was invalid and that the Tribunal did not make the applicant aware of its existence.
I have examined the documents in folios 28 and 29 of the Department file. Those documents are relevant and admissible in this proceeding.[26]
[26]CfMinister for Immigration and Border Protection vCQZ15 [2017] FCAFC 194; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198.
As the Tribunal had found that the applicant’s sponsorship had been withdrawn and the claim of family violence had not been made out, it is clear that: (1) the Tribunal could not have been satisfied that the applicant met the primary criterion for the grant of a Subclass 801 visa specified in cl 801.221(1) of Sch 2 to the Regulations; and (2) the documents subject to the certificate could have had no bearing on the question whether the applicant satisfied that criterion.
In this case, neither the invalidity of the purported certificate nor the fact that the Tribunal did not make the applicant aware of the existence of the purported certificate gave rise to jurisdictional error. As only one answer was open to the Tribunal to the question whether the criteria for the visa were satisfied, the documents the subject of the purported certificate were not relevant to the issues arising on the review. In its Reasons, the Tribunal made no reference to the purported certificate, the Departmental file more generally or to the two documents.[27] I am satisfied that there was no want of procedural fairness.
[27]See, eg, BIE15 v Minister for Immigration and Border Protection [2016] FCCA 2978, [71]-[73].
Conscious that the court must be careful not to intrude into the fact finding function of a Tribunal, on an objective evaluation of the content of those documents, there was no realistic possibility that the Tribunal’s decision could have been any different if it had taken the documents into account: Minister for Immigration and Border Protection v SZMTA.[28] Further, and for the same reasons, adopting the analysis of the minority in SZMTA,[29] I also conclude that there is no utility in another hearing.
[28](2019) 93 ALJR 252, [48]-[49] (Bell, Gageler and Keane JJ).
[29] (2019) 93 ALJR 252, [85] (Nettle and Gordon JJ).
I accept the Minister’s submission that any error arising from the existence of the purported certificate could not have denied the applicant the possibility of a successful outcome, and that relief should be refused in the exercise of the court’s discretion.
For the reasons above, I am not satisfied that it is necessary in the administration of justice to grant the application for an extension of time in which to apply for judicial review. Nor, in my opinion, would it otherwise be appropriate in the exercise of discretion to do so. The application will be refused with costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 2 May 2019.
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