Khakpour v Minister for Immigration

[2020] FCCA 815

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAKPOUR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 815

Catchwords:
MIGRATION – Application to rely upon affidavits going to length of time it took for the offshore processing of a visa – compassionate considerations relied upon in submissions – applicant granted leave to amend application.

Legislation:

Migration Act 1958 (Cth), s.359

Cases cited:

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Applicant: MOHAMMAD ALI KHAKPOUR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 796 of 2019

Judgment of: Judge Egan

Hearing date: 19 March 2020

Date of Last Submission: 19 March 2020

Delivered at: Brisbane

Delivered on: 19 March 2020

REPRESENTATION

Counsel for the Applicant: Mr L. Boccabella

Solicitors for the Applicant: A.J Torbey & Associates

Solicitors for the First Respondent: Ms Allen of Sparke Helmore

ORDERS

1. The hearing of this matter be adjourned to 9.45am on 6 May 2020 in the Federal Circuit Court of Australia sitting at Brisbane.

2. The Applicant have leave to further amend the amended application for review, as advised, on or before 4.00pm on 16 April 2020.

3. The Applicant file and serve a consolidated set of submissions making reference to all aspects of its case, on or before 4.00pm on 16 April 2020.

4. The First Respondent file and serve a consolidated set of submissions in response, on or before 4.00pm on 30 April 2020.

5. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

6. The costs of and incidental to the adjournment today be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 796 of 2019

MOHAMMAD ALI KHAKPOUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. At the outset of the hearing today, the applicant identified the material that was to be relied upon as follows:

   a)The amended application, filed on 26 December 2019.

   b)An affidavit from Mr Boccabella, filed on 18 March 2020.

   c)An affidavit Ermenegilda Boccabella, filed on 3 March 2020.

2. Ms Allen, on behalf of the first respondent, objected to the applicant relying upon the two affidavits which were sought to be relied upon by Mr Boccabella.

3. It became apparent during the course of argument concerning the admissibility or otherwise of the two affidavits that the applicant was complaining about the Tribunal not having obtained information relevant to the issue as to the length of time that it took for the processing, offshore, of a visa application such as the one the subject of the current dispute.  It is clear from the submissions that have been filed on behalf of the applicant that the applicant had asserted that, for compassionate reasons, the Tribunal ought to have granted the application.  A necessary aspect of the applicant’s submission, in that regard, was the length of time that it took to process such a visa application offshore. 

4. The provisions of s. 359 of the Migration Act 1958 (Cth) (‘the Act’) enable the Tribunal to get any information that it considers relevant. Section 359 of the Act relevantly provided as follows:

   (1)  In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)  Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3)  If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 379A; or

   (b)  if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (4)  If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

5. The submission made on behalf of the applicant in support of the application for review placed reliance upon paragraph 100 of the judgment of the High Court in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. That paragraph is part of the judgment of Gageler J, and is as follows:

   “[100] However, the requirement for the MRT to act reasonably is not exhausted in every case where an applicant before the MRT is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review. Reasonableness can require more. Thus, while it has been held that the MRT has no general duty to make inquiries (196), it has been accepted that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” (197). The touchstone is reasonableness in the performance of the duty to review (198).”

6. The Court is of the view, respectfully, that there is a distinction between what Gageler J in Li said in paragraph 100, and an assertion that a Tribunal has failed to exercise statutory power, or otherwise has failed to obtain information pursuant to the provisions of s. 359.

7. Ms Allen, during the course of argument, had submitted that the affidavit material sought to be relied upon by the applicant ought not to be admitted into evidence.  If the Court accepted such submission, then the applicant would be unable to effectively assert, other than in a general way, that the time taken to process a visa application offshore was so lengthy that matters of compassion ought to have been considered by the Tribunal in a positive way.

8. The Court is of the view that for the matter to proceed properly on all counts, the applicant ought to have leave to amend the amended application for review, so as to have regard to the provisions of s. 359 of the Act, and to make submissions accordingly.

9. It is so ordered. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  9 April 2020