Latiff v Minister for Immigration

[2019] FCCA 555

FEDERAL CIRCUIT COURT OF AUSTRALIA

LATIFF v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 555

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – application for reinstatement for non-appearance in this Court – applicant needed to satisfy Criterion 3001 but did not – applicant did not satisfy an essential criterion for the grant of a Partner visa and so Criterion 3001 not waived – applicant’s assertion of jurisdictional error not arguable – application for reinstatement refused.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 425, 476, 477

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

BTK18 v minister for Immigration & Border Protection [2019] FCA 110
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: MOHD IMRAN BIN MOHD LATIFF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1409 of 2016

Judgment of: Judge Dowdy

Hearing Date: 6 April 2018

Date Reserved: 7 May 2018

Delivered at: Sydney

Delivered on: 14 March 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Mr C. Robertson

Solicitors for the First Respondent: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application in a Case for reinstatement filed in this Court on 26 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1409 of 2016

MOHD IMRAN BIN MOHD LATIFF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Relevant Procedural History

1. The Applicant is a male citizen of Malaysia aged 38 years, having been born on 20 March 1980.

2. By Application filed in this Court on 2 June 2016 he had sought to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 13 April 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 December 2015 refusing to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

3. The Applicant had also applied for an extension of time of 15 days under s.477(2) of the Act outside the time limit prescribed by s.477(1) for him to make a substantive application for judicial review in this Court under s.476(1).

4. The first return date of the Application was on 1 July 2016 when the Applicant appeared in person, procedural consent orders were made to ready the matter for final hearing and a final hearing date was appointed for 29 August 2017.

5. When the matter was called at 10:14am on 29 August 2017 the Applicant did not appear and Mr Kay Hoyle of Counsel appeared on behalf of the Minister. No notice or explanation for the Applicant’s failure to appear had been given. I waited until 10:42am, but as there was still no appearance by the Applicant I then acceded to Mr Kay Hoyle’s application for the Application to be dismissed for want of appearance, and made the following orders:

   1. Pursuant to rule 13.03C(i)(c) of the Federal Circuit Court Rules 2001 (Cth) the application in this proceeding be dismissed.

   2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,100.

   3. In the event that the Applicant files an Application in a Case to set aside the order for dismissal today, that he be prepared, on the first return date of that application:

   a. to run his case to set aside the dismissal; and

   b. to run his case on his substantive application in relation to the Tribunal decision below.

6. Subsequently, some 6 months later, the Applicant sought reinstatement of the proceeding by Application in a Case filed on 26 February 2018, and in support of that application deposed in [1] of his affidavit affirmed on 23 February 2018 verbatim as follows:

   [1]    That I am the applicant in this proceeding, I have been the victim of domestic violence by my wife therefore I have been homeless financial problem which led to me in sever desperation, therefore I forgot to attend the hearing on 29 August 2017.

Background

1. The Applicant arrived in Australia on 9 July 2011 on an Electronic Travel Authority (Visitor) (Class TV) (Subclass 976) visa which ceased on 19 January 2012 and which was the last substantive visa held by him. He was then an unlawful non-citizen for three and a half years and applied for the Partner visa on 3 June 2015 through the agency of his solicitor and registered migration agent, Mr Chaudhry of MIC Lawyers (Mr Chaudhry).

2. The Partner visa application was based on the Applicant being in a spousal relationship with an Australian citizen, Ms Rana Helou (the sponsor), whom he had married on 8 April 2013 and was the sponsor for his Partner visa application. She had been born on 1 January 1963.

3. I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of the Migration Regulations 1994 (Cth) (Regulations) is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.  

Statutory Provisions for the Grant of a Partner Visa

1. As at the date of application, the Applicant had to satisfy cl.820.211 of Sch.2 to the Regulations. Relevantly cl.820.211(1) and (2) provided as follows:

   820.211

   (1)     The applicant:

   (a)     is not the holder of a Subclass 771 (Transit) visa; and

   (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the spouse or de facto partner of a person who:

   (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)     the applicant is sponsored:

   (i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

   (ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

   (A)     has turned 18; and

   (B)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d) in the case of an applicant who is not the holder of a substantive visa—either:

   (i)      the applicant:

   (A)     entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)     satisfies Schedule 3 criterion 3002; or

   (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   (emphasis added)

2. As at the date of application, the Applicant also had to satisfy the definition of “spouse” contained in s.5F of the Act, which relevantly provided as follows:

   5FSpouse

   (1)  For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)  they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)  the relationship between them is genuine and continuing; and

   (d)  they:

   (i)  live together; or

   (ii)do not live separately and apart on a permanent basis.

   (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

3. As noted at [7] above, the Applicant’s last substantive visa ceased on 19 January 2012. This meant that at the time of application for the temporary Partner visa he had to satisfy Criterion 3001(1), which relevantly required him to have made his application within 28 days of 19 January 2012, being namely by 16 February 2012. However, he had made his Partner visa application on 3 June 2015, some three years and three months too late. Accordingly, it was necessary for him to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001(1): see cl 820.211(2)(d)(ii).

4. For the purposes of s.5F(3) of the Act, reg.1.15A of the Regulations made “provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist.” That regulation provided at the relevant time as follows:

   1.15A Spouse

   (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(1), (b), (c) and (d) of the Act exist.

   (2) If the Minister is considering an application for:

   (a) a Partner (Migrant) (Class BC) visa; or

   (b) a Partner (Provisional) (Class UF) visa; or

   (c) a Partner (Residence) (Class BS) visa; or

   (d) a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3) The matters for subregulation (2) are:

   (a) the financial aspects of the relationship, including:

   (i) any joint ownership of real estate or other major assets; and

   (ii) any joint liabilities; and

   (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv) whether one person in the relationship owes any legal obligation in respect of the other; and

   (v) the basis of any sharing of day to day household expenses; and

   (b) the nature of the household, including:

   (i) any joint responsibility for the care and support of children; and

   (ii) the living arrangements of the persons; and

   (iii) any sharing of the responsibility for housework; and

   (c) the social aspects of the relationship, including:

   (i) whether the persons represent themselves to other people as being married to each other; and

   (ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii) any basis on which the persons plan and undertake joint social activities; and

   (d) the nature of the persons’ commitment to each other, including:

   (i) the duration of the relationship; and

   (ii)the length of time during which the persons have lived together; and

   (iii) the degree of companionship and emotional support that the persons draw from each other; and

   (iv) whether the persons see the relationship as a long term one.

   (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

5. I note that the criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.

Decision of Delegate

1. The Delegate in her Decision Record first noted that the Applicant claimed that the sponsor and he:

   a)resided together at 19 Festival Street, Sadlier in NSW;

   b)depended on each other for moral support and emotional well-being;

   c)were committed to a long term relationship;

   d)shared the responsibility of looking after the 26 year old daughter of the sponsor; and

   e)presented themselves to society as a married couple.

2. The Delegate then proceeded in her Decision Record to record the Applicant’s three and a half year period of unlawful residence in Australia and that he had made no attempt to engage with the Department of the Minister during this period. The Delegate noted that it was not the intention of the Criterion 3001 waiver “to facilitate persons who have to chosen to remain unlawfully in Australia while awaiting the circumstances which would allow them to make a visa application onshore”. The Delegate further noted that the sponsor’s daughter was a 26 year old woman and there was no evidence to demonstrate that she relied on the Applicant for support, or that she would be unable to manage if the Applicant spent a temporary period of time offshore.

3. Accordingly, in the result the Delegate was not satisfied that there were compelling reasons for waiving and not applying Criterion 3001, that the Applicant did not meet cl.820.221(2)(d) of the Regulations and refused to grant to the Applicant the temporary Partner visa, which meant that pursuant to cl.801.221(1) the Applicant also did not meet the criteria for the grant of the permanent Partner visa.

4. Whilst in her Decision Record the Delegate largely focused on whether there were compelling circumstances for not applying Criterion 3001, she also expressly stated that she questioned whether the Applicant and the sponsor were in a genuine spousal relationship, stating as follows at pages 4 and 5 of her Decision Record:

   Even though you have provided a marriage certificate dated 8 April 2013, there is no accompanying evidence to substantiate a relationship before or following your marriage. Evidence provided with your application demonstrates other commitments such as a joint bank account does not occur until 15 December 2014 and a joint letter of tenancy states you have been residing together at a property since 4 April 2015. Overall you have provided limited evidence that you and your sponsor have combined your lives in a significant way, which leads me to question the level of support you provide each other and your claims of your emotional reliance on each other.

   (page 4)

   Finally, I have considered the information provided in your application and with your submission. The inconsistent and limited nature of the evidence provided for a claimed long term spousal relationship, does not necessarily lead me to conclude that you are in a genuine spousal relationship with your sponsor, however I have not undertaken a formal assessment of your relationship as, regardless, the existence of a genuine relationship is not, in itself, a compelling reason to waive the Schedule 3 criteria, given that genuineness should form the basis of all partner visa applications.

   (page 5)

Tribunal Decision

1. The Applicant, through the agency of Mr Chaudhry, lodged an application for merits review with the Tribunal on 28 December 2015 and gave a copy of the Decision Record of the Delegate to the Tribunal.

2. The Applicant and his sponsor appeared before the Tribunal on 24 March 2016 to give evidence and present arguments.

3. The Tribunal focused on whether the Applicant and the sponsor were in a genuine and continuing spousal relationship at the time of application and time of decision and, if so, whether there were compelling reasons for not applying Criterion 3001.

4. In the result the Tribunal found that it was not satisfied, either at the time of the Partner visa application or the time of decision, that the Applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing or that they lived together or did not live separately and apart on a permanent basis and that therefore the Applicant did not meet the definition of “spouse” provided by s.5F(2)(b) – (d) of the Act: see [11] above. In particular, the Tribunal made the following findings:

   a)the oral evidence given by the Applicant and the sponsor at the Tribunal hearing “was hesitant, ambiguous and inconsistent with the documents provided and with one another. They could not clearly recall when they had met and [the sponsor] was unable to remember the date of the parties’ marriage” and the sponsor was “unable to remember the day or month that the parties had married in 2013”: see [15] of the Decision Record;

   b)the Applicant and the sponsor did not have any joint assets or liabilities;

   c)whilst they claimed that they lived in a two bedroom apartment with the adult daughter of the sponsor they had never signed a lease together, with the lease of the apartment being in the name of the sponsor and her daughter;

   d)there was a discrepancy between the oral evidence given by the Applicant and the oral evidence given by the sponsor at the Tribunal hearing being:

   i)the Applicant said that the sponsor who was working as an employed interior designer had ceased her employment around two weeks ago but the sponsor said she had stopped working as a self-employed interior designer four or five months ago; and

   ii)the Applicant said that the sponsor cooked black lentils for dinner the night before the Tribunal hearing but it was not eaten because they were anxious about the hearing, but the sponsor said that the Applicant had cooked chicken which had been eaten by them both the night before: see [16] – [17] of the Decision Record. 

   e)the Tribunal asked the Applicant and the sponsor concerning a letter from the Applicant’s daughter dated 9 November 2015 on the letterhead of Laing & Simmons, signed by the sponsor’s adult daughter who was Property Manager there, and which claimed to verify that the Applicant had been a tenant at 19 Festival St, Sadlier since 4 April 2015. This letter had been forwarded under cover of an email to the Department of the Minster from Mr Chaudhry dated 1 December 2015, but the sponsor told the Tribunal “that she knew nothing about the letter” and the Tribunal placed no weight on this letter: see [23] of the Decision Record;

   f)whilst the Applicant and the sponsor gave evidence that they had a joint savings account with St George Bank, the statements provided, including those provided subsequent to the Tribunal hearing on 29 March 2016, did not support their evidence about the use of the account: see [24] and [25] of the Decision Record;

   g)at the time of lodging the Partner visa application Mr Chaudhry had forwarded to the Department of the Minister two statutory declarations declared by two gentlemen who said that the Applicant and the sponsor were their friends, that they had attended their wedding ceremony on 8 April 2013 and that they saw the Applicant and the sponsor often. However, at the Tribunal hearing both the Applicant and the sponsor confirmed that the sponsor had never met either of the deponents to these statutory declarations, which declarations the Tribunal found to be untruthful and on which the Tribunal placed no weight: see [30] of the Decision Record;

   h)the Tribunal accepted the evidence of the Applicant and the sponsor that they had never been away together on a holiday or for a weekend;

   i)the Tribunal found that the evidence of the Applicant and the sponsor was vague and inconsistent and found that neither were credible: see [40] of the Decision Record; and

   j)the Tribunal found that the evidence before it indicated that the claimed relationship between the Applicant and the sponsor was contrived, that they did not impress as sincere and that they were vague in their evidence about their plans for the future: see [41] of the Decision Record.

1. At [46] – [47] the Tribunal turned to the issue of Criterion 3001 and found that as the Applicant had not met an essential criterion for the grant of the Partner visa, namely cl.820.211(2)(a), that it was not necessary to consider the issue of any compelling reasons for not applying Criterion 3001. The Tribunal affirmed the decision of the Delegate not to grant to the Applicant a temporary Partner visa, which meant that he could not be granted a permanent Partner visa.

Proposed Substantive Grounds of Attack on Tribunal Decision

1. The Grounds appearing in the Application and on which the Applicant would rely if granted reinstatement of the proceeding and the required extension of time are as follows:

   1. The Respondents made an error of law, in reaching a decision which failed to understand the law relevant to the applicant’s claims, namely s.5F of the Migration Act 1958;

   2. The Respondents took into account irrelevant facts and disregarded relevant facts in determining the existence of a spousal relationship between the applicant and the sponsor. Thereby, the Respondents made procedural mistakes in reaching their decisions;

   3. Due to ground number 2, the applicant was not heard properly thus the Respondents breached rules of natural justice, namely the hearing rule.

Application in a Case Seeking Reinstatement

1. The principles governing an application for reinstatement of an application after it has been dismissed for absence of appearance under Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] as follows:

   [7]    In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (a)     whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out; 

   (b)     the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; 

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement

   (emphasis added)

2. A similar statement of principle was made by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] – [6] in the following terms:

   [4]    As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

   [5]  However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.

   [6]  The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.

3. Guided as I am by these principles, first I find that the Applicant has not given any reasonable excuse or adequate explanation for his failure to appear at the final hearing on 29 August 2017. Other than his mere assertion in [1] of his affidavit of 23 February 2018, there is no probative or corroborating evidence that he has been the victim of domestic violence by his wife or that he has been homeless or suffered from financial problems. There is no medical evidence substantiating his claim to have been desperate or depressed or that these matters could have led him to forgetting the final hearing scheduled for 29 August 2017.

4. Second, whilst there is no evidence that the Minister has been prejudiced by the Applicant’s non-appearance at the final hearing on 29 August 2017 other than with respect to costs, mere absence of prejudice does not of itself militate a reinstatement order.    

5. Third, I do not consider that if I granted reinstatement and an extension of time that the substantive Grounds relied upon in the Application have any reasonable prospects of success, but rather am of the view that they would fail in establishing that the decision of the Tribunal was affected by jurisdictional error.

Consideration

Proposed Substantive Ground 1

1. This Ground asserts that the Tribunal made an error of law in failing to understand s.5F of the Act. In my view this Ground would clearly fail. The Ground is general and unparticularised and does not identify in what respects the Tribunal is claimed to have misunderstood s.5F. However, in my view it is clear that the Tribunal correctly understood and applied s.5F in the context of this case. Section 5F is expressly referred in unexceptionable terms at [19] – [21] and [44] of the Decision Record.

2. In my view, the Tribunal correctly identified that the marriage of the Applicant and the sponsor was formally valid and then correctly identified the matters set out in reg.1.15A of the Regulations made pursuant to s.5F(3) of the Act and considered in its Decision Record under the following sub-headings the matters that were mandatory for it to consider, being:

   a)the financial aspects of the relationship;

   b)the nature of the household;

   c)the social aspects of the relationship; and

   d)the nature of the persons’ commitment to each other.

3. This Ground would fail to establish jurisdictional error.

Proposed Substantive Ground 2

1. This Ground is wholly unparticularised and fails to identify the “irrelevant facts” which the Tribunal is claimed to have taken into account and the “relevant facts” which it is alleged the Tribunal disregarded. The claimed “procedural mistakes” are also unidentified.

2. Nothing was said at the hearing of the reinstatement application by the Applicant to render proposed Ground 2 meaningful and in my view it has no reasonable prospects for establishing that the decision of the Tribunal is affected by jurisdictional error.

Proposed Substantive Ground 3

1. There is not a skerrick of evidence to the effect that the Tribunal breached the rules of natural justice. The Applicant and the sponsor were invited to a hearing before the Tribunal, which they attended. Whilst Mr Chaudhry did not attend the Tribunal hearing, the Applicant had the benefit of his advice up until that point. The evidence of the hearing record of the Tribunal establishes that the Tribunal hearing commenced at 9:30am and ended at 11:21am with the Applicant being given until 1 April 2016 to provide further documentation to the Tribunal, which the Applicant did: see [14] of the Decision Record. The Decision Record of the Tribunal evidences a comprehensive, reasoned and meaningful consideration of the Applicant’s claims and evidence and Ground 3 would fail to establish jurisdictional error.

2. I record that at the hearing of the reinstatement application I asked Mr Robertson, who appeared for the Minister as a model litigant, whether the Minister could discern any other possible jurisdictional error of which the Applicant could avail himself and his answer was in the negative. I have considered whether SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) with respect to the procedural fairness obligation in s.425(1) of the Act might possibly be availed of by the Applicant. Jagot J in BTK18 v minister for Immigration & Border Protection [2019] FCA 110 at [12] stated of SZBEL as follows:

   [12] In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 the High Court considered the procedural fairness obligation in s 425(1) of the Act, which requires the Tribunal to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The relevant “SZBEL principle” is that, as the High Court said in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [83]:

   Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person (citations omitted) …

3. However, in my view SZBEL could not assist the Applicant. At page 2 of her Decision Record the Delegate had pointed out by reference to cl.820.211(2) the critical issue and fundamental requirement for the grant of the Partner visa, namely that the Applicant be the spouse of the sponsor, and at page 4 referred to the range of documentation submitted by the Applicant in support of a finding to that effect. The passages from the Decision Record referred to at [18] above identified for the Applicant and put him on clear notice of this critical issue and that the Delegate had doubts about and questioned the existence of a genuine spousal relationship between the Applicant and the sponsor.

4. Further, the questioning by the Tribunal member and the responses of the Applicant and his sponsor at the Tribunal hearing as recorded in the Decision Record establish that the Applicant must have been aware that the Tribunal was considering the quality of the spousal relationship, as is further confirmed by the fact that the Applicant utilised the opportunity given to him by the Tribunal to submit further bank account statements for their joint account, which documents would only have been relevant to the Tribunal considering the financial aspects of the relationship between the Applicant and the sponsor for the purposes of the definition of “spouse” under s.5F of the Act. The Applicant could not have thought from the Decision Record of the Delegate that the genuineness of his claims of spousal relationship with the sponsor was not in issue and the Tribunal appears from its Decision Record to have clearly identified to the Applicant that the genuineness of the spousal relationship was a critical issue. The Applicant has not suggested that he was not aware of this critical issue and he has not tendered a transcript of the Tribunal hearing, although the onus was on him to do so pursuant consent order 3 as made on 1 July 2016, if he wished to rely on anything which occurred or did not occur at the Tribunal hearing.

A Final Matter

1. At the hearing of the Application in a Case for reinstatement the Applicant sought an adjournment, as he claimed that he did not have relevant documents because his wife had them and would not give them to him.

2. I refused the adjournment application. The Applicant had commenced the proceeding in this Court on 2 June 2016 and there had been ample time for him to prepare his case for hearing. He had failed to appear at the final hearing date on 29 August 2017 and he did not identify the documents which he said that he did not have. He had been served with the Court Book, which in the usual case would have contained all the documents necessary for the hearing of his substantive Application. There was no evidence or suggestion that he had ever asked the Minister for copies of the documents for which he claimed he did not have access.

3. Accordingly, I was of the view that it was not in the interests of justice for any adjournment to be granted to the Applicant.

4. Nevertheless, to obviate any possible disadvantage to the Applicant I directed that in the event that he was minded to put on any further Written Submissions he do so by 6 May 2018. No such Written Submissions were served by 6 May 2018, or at all. I note that by letter dated 3 May 2018 a request was made of the solicitor for the Minister on behalf of the Applicant for an extension of time for the Applicant to file documents, which was forwarded on to my Chambers with an indication that if a request for a further extension of time was actually made to the Court, it would be opposed by the Minister. No such application was ever addressed to the Court, and if it had been I would have refused any extension on the ground that there had been afforded to the Applicant more than sufficient time to make Written Submissions to the Court.  

Conclusion

1. In my view the decision of the Tribunal is not affected by jurisdictional error and it therefore follows that there is no point or purpose and it is not in the interests of justice that the Application filed in this Court on 2 June 2016 be reinstated.

2. Accordingly, the Application in a Case for reinstatement filed on 26 February 2018 is to be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 14 March 2019