Kumar v Minister for Immigration and Anor
[2020] FCCA 1377
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1377 |
| Catchwords: MIGRATION – Extension of Time Application – insufficient explanation – lack of merit – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), s.477 Federal Circuit Court Rules 2001 (Cth), r.7.01, pt.3 div.1 sch.1 |
| Cases cited: Gupta v Minister for Immigration [2016] FCA 1004 |
| Applicant: | SHAM KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1938 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 22 November 2018 |
| Date of Last Submission: | 22 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondents: | Australian Government Solicitor |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1938 of 2016
| SHAM KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 9 September 2016 (Substantive Application), the Applicant seeks judicial review of a decision of the Second Respondent (Tribunal) made on 11 July 2016 (Tribunal’s Decision). The Tribunal’s Decision affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicant a subclass 801 Partner (Residence) (Class BS) visa (Visa).
In the Substantive Application, the Applicant seeks an extension of time (Extension of Time Application) pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to pursue the Substantive Application.
The Applicant was unrepresented before this Court and appeared with the assistance of an interpreter in the English and Punjabi languages.
Background
The Court had before it a Court Book numbering 156 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the Minister’s written submissions filed on 28 April 2017 (Minister’s Submissions) at [2] to [9] accurately summarise the factual history of this matter. With some minor alterations, the Court adopts those submissions, as its own. They provide, relevantly, as follows.
The Applicant, a citizen of India, arrived in Australia on 10 April 2008 holding a subclass 573 dependent student visa which was valid until 2 September 2010. The Applicant remained in Australia thereafter as an unlawful non-citizen before applying for a protection visa on 17 October 2011. That application was refused, and the decision was affirmed by the then Refugee Review Tribunal on 9 August 2012.
On 13 September 2012, the Applicant applied for a subclass 820 partner (Temporary) (Class UK) visa (Subclass 820 Visa) and the Visa on the basis of his relationship with Ms Celeste, his sponsor[1].
[1] CB 9-32.
On 4 December 2013, the Delegate refused to grant the Subclass 820 Visa. The Delegate was not satisfied that the Applicant was in a genuine spousal relationship with Ms Celeste, and therefore did not satisfy cl.820.211 (Subclass 820 Decision)[2]. As the Subclass 820 Visa had been refused, the Delegate concluded that the Applicant did not satisfy the criteria for the Visa (Subclass 801 Decision).
[2] CB 114-122.
On 6 January 2014, the Applicant applied to the then Migration Review Tribunal (MRT) for merits review of the Subclass 820 Decision.
On 24 February 2014, the MRT found it did not have jurisdiction to review the Subclass 820 Decision, as the review application had been filed more than 21 days from the day of deemed service[3] (MRT Decision). The Applicant then applied for judicial review of the MRT Decision, which was dismissed on 10 November 2014 by this Court[4].
[3] CB 129 -130.
[4] Kumar v Minister for Immigration [2014] FCCA 2589.
On 19 January 2016, the Minister’s Department (Department) wrote to the Applicant to notify him of an error in relation to the Subclass 801 Decision and that a new decision record would be provided[5].
[5] CB 131-132.
On 8 March 2016, the Department wrote to the Applicant providing re‑notification and reasons for the refusal of the Subclass 801 Visa (Re-notification Notice)[6].
[6] CB 133-136.
On 24 March 2016, the Applicant applied to the Tribunal for review of the Subclass 801 Decision[7].
[7] CB 137-138.
On 8 April 2016, the Applicant notified the Tribunal that he would be represented by Viva Immigration[8].
[8] CB 141-142.
On 29 June 2016, the Applicant appeared at the Tribunal. The Applicant gave evidence, presented arguments and provided the Tribunal with a copy of the decision record for the Subclass 820 Decision and the Subclass 801 Decision. The Tribunal also heard oral evidence from Ms Sila Devi, the Applicant’s friend. The Applicant was assisted by an interpreter in the English and Punjabi languages[9].
[9] CB 148-150; 153, at [10].
On 11 July 2016, the Tribunal affirmed the Subclass 801 Decision to refuse the Visa.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 153 to 155 of the Court Book. The Minister’s Submissions at [11] to [15] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal first set out the relevant background[10] and outlined the relevant law[11]. The Tribunal then confirmed that the Applicant was seeking review of the Subclass 801 Decision, and not the Subclass 820 Decision[12].
[10] CB 153, at [5]-[10].
[11] CB 153, at [1]-[3].
[12] CB 154, at [11].
The Tribunal accurately identified that an essential requirement for the granting of the Visa is that the Applicant “is the holder of a Subclass 820 visa”[13]. The Tribunal found that there was no evidence that the Applicant holds, or has ever held, a subclass 820 visa, and therefore failed to satisfy the requirement[14]. At [12], the Tribunal stated:
The Tribunal told Mr Kumar that an essential requirement for a Subclass 801 visa is that the visa applicant is the holder of a Subclass 820 visa. The Tribunal asked Mr Kumar if he held or had ever held a Subclass 820 visa. Mr Kumar told the Tribunal that he could not remember.
[13] CB 155, at [25].
[14] CB 155, at [23].
The Applicant gave evidence predominantly regarding the Subclass 820 Decision[15]. The Applicant also gave evidence in respect to the delay in filing his application with the Tribunal for the review of the Subclass 820 Decision, and confirmed that that was all he wished to say[16]. The Applicant did not provide evidence that he holds or has ever held a subclass 820 visa[17].
[15] CB 154, at [20].
[16] CB 154, at [21].
[17] CB 154, at [20].
The Tribunal also heard evidence from Ms Devi, a friend of the Applicant. Ms Devi gave evidence that the Applicant is a “good guy” and corroborated the Applicant’s evidence as to the delay in filing the application for review of the Subclass 820 Decision[18]. The Tribunal told Ms Devi that the relevant decision under review was the Subclass 801 Decision[19].
[18] CB 154, at [22].
[19] Ibid.
The Tribunal expressed concern throughout the hearing that much of the evidence that was provided by the Applicant indicated that he was confused, and that he was providing evidence surrounding the Subclass 820 Decision. The Tribunal explained and confirmed with the Applicant on several occasions that it is the Subclass 801 Decision under review, and not the Subclass 820 Decision[20]. At [11], [20] and [22], for example, the Tribunal stated the following to clarify which decision was under review:
11.The Tribunal told Mr Kumar that on the application for review form which he submitted to the Tribunal he had sought review of a Subclass 820 visa refusal. The Tribunal sought clarification from Mr Kumar whether it was his intention that the Tribunal review the Subclass 820 or the Subclass 801 refusal. Mr Kumar told the Tribunal his intent is to have the Subclass 801 reviewed. As a result the Tribunal will review the Subclass 801 refusal.
[…]
20.He did not have any proof that he held or holds a Subclass 820 visa. When Macrina Celeste, his sponsor, went to the Philippines he gave her approximately $5,000. When she returned she had the letter from Immigration and after he gave her some money she gave him the letter. The Tribunal clarified that Mr Kumar was talking about the Subclass 820 refusal notification and he responded in the affirmative. Mr Kumar told the Tribunal the parties fought and Ms Celeste left the home and the parties have not lived together since 2013.
[20] See CB 154, at [11], [20] and [22] for example.
[…]
Ms Devi’s evidence
22.Mr Kumar is a good guy. She has known him since the time he married his sponsor. The letter sent to him by the Department to inform him of the Subclass 820 visa he did not receive in time. He was told that if he went to the Department he would be provided additional time to respond. The Tribunal told Ms Devi that this information referred to the refusal of the Subclass 820 visa and this Tribunal review was for the Subclass 801 visa.
As it is an essential criteria for the grant of the Visa that “the applicant is the holder of a Subclass 820 visa”, and this criteria had not been met, the Tribunal affirmed the decision of the Delegate not to grant the Applicant the Visa[21]. At [23]-[26], the Tribunal stated:
23.Mr Kumar did not provide any evidence that he held a Subclass 820 visa and there is no other material before the Tribunal which indicates he holds a Subclass 820 visa. At the time of this decision Mr Kumar has not provided any evidence to the Tribunal that he is the holder of a Subclass 820 visa.
24.The question in this case is whether Mr Kumar meets the requirements for a Subclass 801 visa.
25.The criteria for a Subclass 801 visa are attached to this decision. An essential requirement for a Subclass 801 visa is that “the applicant is the holder of a Subclass 820 visa”.
26.The evidence before the Tribunal is that Mr Kumar is not the holder of a Subclass 820 visa therefore it follows that he cannot be granted a Subclass 801 visa.
[21] CB 155, at [25]-[26].
The Tribunal considered the circumstances as a whole, and concluded that the Visa should be refused[22].
[22] CB 155, at [27].
Extension of Time Application
As indicated above, the Applicant seeks an extension of time in order to commence the Substantive Application. In the Substantive Application, the Applicant indicated that he needed an extension of time and set out the “grounds” of why he considered it to be in the interests of the administration of justice for the extension to be granted.
The Applicant’s grounds in his Extension of Time Application are as follows:
1.I was not financially capable to afford the judicial costs
2.Now I am out of depression as well and in a good condition to lodge the judicial review application.
(Without alteration)
The Applicant has not satisfied the requirements of s.477(1) of the Act as he filed his Substantive Application outside of the prescribed 35 day time limit.
Section 477(2) of the Act provides that the Court may order that the 35 day period be extended if the conditions in s.477(2) of the Act are satisfied. Section 477(2) of the Act provides:
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Minister, in its role as a model litigant, noted that the matters the Court will most often consider in relation to s.477(2) of the Act are[23]:
a)The length of delay and the Applicant’s reasons for delay;
b)Any prejudice which would be suffered by the Minister; and
c)The merits of the proposed appeal (whether the appeal is “hopeless and destined to fail”): SZTES v Minister for Immigration and Border Protection [2015] FCA 719.
[23] Minister’s Submissions, at [19]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, at [6].
The Court will consider these matters in turn.
Consideration
Explanation for the delay
The Substantive Application was filed in this Court on 9 September 2016.
The application should have been made within the 35 day period as prescribed by s.477(1) of the Act. The Applicant is therefore some 4 weeks’ out of time in filing the Substantive Application. The Court accepts that the delay here is relatively short but nevertheless not insignificant.
However, the Court must also consider the Applicant’s explanation for delay.
In the Extension of Time Application, the Applicant explained the reason for the delay in commencing the Substantive Application was that he lacked the financial means to file the material in the Court. The Court notes that the only evidence before it in relation to the finances of the Applicant were contained in the Applicant’s undated letter addressed to the Federal Court of Australia[24]. The letter refers to events in 2012 and 2013, and appears to address why the Applicant was late in lodging his application at the MRT, and also refers to his partner asking for various sums of money. The letter does not address the Applicant’s financial capacity in 2016 when, relevantly, the Tribunal’s Decision was made. It does not, in any way, provide an explanation for the delay in commencing the Substantive Application in this Court.
[24] Exhibit A1.
The Applicant further added at the hearing that:
My wife was demanding a lot of money from me and was mistreating me, and then she left me and went to Sydney.[25]
[…]
Before she left, she threatened me that if I don’t pay $5,000 to her, she will put all this false allegation against me in the Immigration.[26]
[25] Transcript T3:24-25.
[26] Transcript T3:32-34.
There is no financial evidence provided by the Applicant to support this assertion. Even if the Court was to accept that the Applicant lacked the financial means to commence his Application, it was open to the Applicant to contact the Court to discuss if there were any options available to him, notwithstanding his alleged financial incapacity.
The Court is not satisfied that the Applicant’s explanation of lacking financial means to commence the Substantive Application is acceptable, let alone sufficient to mitigate the extent of the delay.
The Applicant also advanced an argument that he was suffering from depression. There is no evidence to support this assertion. There is no evidence from a medical practitioner or a psychologist, or at the very least, evidence on affidavit by the Applicant to support this claim. The Court is not satisfied that the Applicant’s explanation of suffering depression is acceptable to mitigate the delay.
Overall, the Court considers that the not insignificant delay and insufficient explanation do not weigh in favour of an extension.
Prejudice
The Minister concedes that there is no prejudice to the Minister[27]. The Court is prepared to find that this weighs in favour of an extension being granted.
[27] Minister’s Submissions, at [21]; Transcript T8:11.
Merits
The merits of the Substantive Application generally carry the most weight in determining whether an extension should be granted: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6]. When considering the merits of the Substantive Application, the Court has done so at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391, at [62]-[63].
The Substantive Application contains three grounds as follows:
1.I have genuine evidence to appeal against the partner visa refusal decision.
2.The subclass was rectified in the decision record from 820 to 801.
3.But all the criteria for 820 is met by me as I have documentary evidence; but MRT gave oral decision without giving enough of consideration to the all evidence I had.
(Without alteration)
The Applicant was provided an opportunity to file an amended application with proper particulars of the grounds of the Substantive Application by Orders of a Registrar of this Court, dated 1 March 2017. Despite this, no further material was filed and the Applicant’s grounds of review remain unparticularised.
The Court will now consider the merits of each ground of review in turn.
Ground 1
The First Ground does not provide any error of law, but instead is requesting an opportunity to provide further evidence “to appeal against the partner visa refusal decision”.
This ground of review holds no merit. The Applicant provided two additional pieces of evidence on the day of the hearing, however, these pieces of evidence provided no probative evidence to proving that the Applicant holds or has ever held a subclass 820 visa[28]. Neither exhibit evidenced, nor did they even address, that the Applicant has ever held a subclass 820 visa. Further, even if the Applicant had provided evidence to indicate that he held a subclass 820 visa, this clearly goes to the merits of the Tribunal’s Decision and not the identification of any jurisdictional error.
[28] Exhibit A1; Exhibit A2.
The Applicant had several opportunities to present evidence to progress his argument prior to and at the hearing before this Court. Despite this, the Applicant did not produce any evidence to the Court to assist him in advancing the Substantive Application.
Even if the Applicant had provided “genuine evidence”, as asserted in the Substantive Application, an application for judicial review is ordinarily confined to the same material that was put before the Tribunal for the Subclass 801 Decision. Fresh evidence is not admissible before the Court in judicial review, unless it bears on some jurisdictional error: SZJMG v Minister for Immigration [2008] FCA 1145, at [27]. It is not open to the Applicant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal, as it is not the role of the Court to assess the merits of the case: MZXHY v Minister for Immigration [2007] FCA 622, at [8]; Gupta v Minister for Immigration [2016] FCA 1004, at [27]. The Court has no jurisdiction to review the merits of a decision.
The Applicant’s statement that the Applicant holds “genuine evidence to appeal against the partner visa refusal decision” does give rise to any jurisdictional error. This ground of review fails to assert any error of law, and accordingly, has insufficient merit.
Ground 2
The Second Ground for review eludes to an event where the decision record was corrected from referring to the subclass 820 visa to referring to the Visa, the subject of these proceedings.
It is possible that the Applicant is referring to the procedural Re‑notification Notice, outlined above. The Re-notification Notice may have given rise to some confusion to the Applicant, but confusion regarding the Re-notification Notice does not amount to an error in law.
In the Re-notification Notice, the Department correctly notified the Applicant that[29]:
Clause 801.221 requires that the applicant meets the requirements of subclauses 801.221(2), (2A), (3), (4), (5), (6) or (8). These subclauses relevantly require that the applicant holds or held a subclass 820 visa. You could not satisfy any of the subclauses in clause 801.221 because your application for the grant of a subclass 820 visa was refused so you do not hold and have not held a subclass 820 visa.
[29] CB 133.
The Re-notification Notice did not change the subclass “in the decision record from 820 to 801”, but simply gave proper notice of the basis upon which the Subclass 801 Decision was made on 4 December 2013, and attached a copy of the Subclass 801 Decision for reference. The Re‑notification Notice specifically noted that the Applicant was “not being re-notified of [the Subclass 820] decision”[30].
[30] CB 133.
This ground of review fails to assert any error of law, and accordingly, has insufficient merit.
Ground 3
The Third Ground in the Substantive Application holds no merit.
First, it is referring to the review of the Subclass 820 Decision. The Subclass 820 Decision is not the decision under review. The Substantive Application is regarding the Subclass 801 Decision. It is not the place of the Court to review the Subclass 820 Decision, as the Applicant has already unsuccessfully applied to this Court for judicial review of the Subclass 820 Decision[31].
[31] Kumar v Minister for Immigration [2014] FCCA 2589.
Second, neither the Subclass 801 Decision nor the Subclass 820 Decision were given “orally” as the ground suggests.
Third, the Tribunal’s Decision under review in the Substantive Application turned on the question of whether the Applicant met cl.801.221 to sch.2 of the Regulations. Clause 801.221 of sch.2 to the Regulations required that the Applicant hold, or have held, a Subclass 820 visa. The Applicant’s only evidence before the Tribunal relating to this was that he could not recall whether he has ever held a subclass 820 visa[32]. There was no documentary evidence which could support a finding that he has ever held a subclass 820 visa[33]. Due to lack of evidence, the Tribunal was therefore not satisfied that cl.801.221 was met and was required to refuse the Visa.
[32] CB 154, at [12].
[33] CB 154, at [20].
Fourth, that the Applicant says he met all the criteria for the 820 visa and had the evidence was irrelevant to the Tribunal’s task. The Tribunal’s task was to review the Subclass 801 Decision. Further, the Tribunal referred to the Applicant’s evidence and the evidence of Ms Devi, however that evidence pertained to the Subclass 820 visa, which was not within the ambit of the Tribunal’s review and thus was considered to be irrelevant.
The Tribunal properly and reasonably applied the legislative criterion and afforded the Applicant the procedural fairness obligations contained in div.3 of pt.5 of the Act.
The Court is satisfied that there is no arguable case that the Tribunal has fallen into jurisdictional error.
This weighs against the granting of an extension of time.
Conclusion
Due to the lack of valid explanation for the delay and the lack of merit in the Substantive Application, the Court is not satisfied that it is in the interest of the administration of justice to extend time under s.477(2) of the Act.
The Extension of Time Application is refused.
The Minister seeks costs in the sum of $6,000, which is less than the costs allowed in pt.3, div.1 of sch.1 to the Federal Circuit Court Rules 2001 (Cth). An Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $6,000.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 3 June 2020
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