McKinney v Minister for Immigration
[2015] FCCA 2377
•8 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCKINNEY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2377 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file judicial review application – where no application in writing made to extend time – whether mandatory to comply with requirement to file affidavit explaining delay and showing why interests of administration of justice required time to be extended – whether time able to be extended – consideration of factors in relation to an extension of time. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), Division 5, Part 5, ss.65, 348, 353, 357A, 359A, 359AA, 360, 360A, 362B, 379A, 379C, 420, 476, 477 |
| BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 Jiang v Minister for Immigration & Anor [2007] FMCA 215 Johnson v Minister for Immigration & Anor [2015] FCCA 610 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 |
| Applicant: | JOHN DOUGLAS MCKINNEY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 285 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 August 2015 |
| Date of Last Submission: | 26 August 2015 |
| Delivered at: | Perth |
| Delivered on: | 8 September 2015 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (made on 26 August 2015)
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed as incompetent by reason of s.477 of the Migration Act 1958 (Cth).
Reasons for Judgment be published at a later date electronically from Chambers.
The Applicant pay the First Respondent’s costs in the sum of $6825 by 26 September 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 285 of 2014
| JOHN DOUGLAS MCKINNEY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Orders made
On 26 August 2015 the Court made the following orders in this matter:
1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
2.The application be dismissed as incompetent by reason of s.477 of the Migration Act 1958 (Cth).
3. Reasons for Judgment be published at a later date electronically from Chambers.
4. The Applicant pay the First Respondent’s costs in the sum of $6825 by 26 September 2015.
The following are the Courts Reasons for Judgment referred to in order (3) of the 26 August 2015 orders.
Introduction
This proceeding commenced on 19 September 2014 by the applicant filing an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review (“Judicial Review Application”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal, made on 13 August 2014 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made on 6 February 2014 by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Partner (Residence) (Class BS) visa (“Partner Visa”) under the Migration Act 1958. The Tribunal Decision appears at Court Book (“CB”) 193-198.
The Judicial Review Application was lodged two days outside the time period set by s.477(1) of the Migration Act 1958.
The applicant did not tick the box on his Judicial Review Application form indicating that he was applying for an extension of time, and the Judicial Review Application does not specify any grounds for an extension of time. The applicant did not otherwise make any application in writing for an extension of time, and did not refer to the issue of extension of time in his affidavit sworn on 19 September 2014 (“Applicant’s Affidavit”) filed in support of the Judicial Review Application.
The Applicant’s Affidavit is of two paragraphs, as follows:
1.Member Goodier seemed to have her mind made up that my relationship was over before time of the alleged breakup.
2.My arguement is that AT THE TIME of the visa refusal we were still in a relationship. Not now but at the time of the refusal we were.
(Transcribed from the original without amendment.)
On 29 October 2014 a Registrar of the Court ordered that the applicant file and serve, on or before 4 March 2015, any amended Judicial Review Application giving particulars of the grounds of review, and any affidavits upon which he intended to rely at hearing. The Judicial Review Application was listed for hearing on 26 August 2015, and the applicant was ordered to file and serve an outline of submissions not less than 14 days before the hearing. The applicant did not file or serve any amended Judicial Review Application or any affidavits, nor any outline of submissions prior to the hearing.
The Minister filed an outline of submissions seven days before hearing in accordance with the Registrar’s orders of 29 October 2014 (“Minister’s Submissions”).
The applicant did not appear at the hearing before the Court on 26 August 2015. The applicant attended before the Registrar on 29 October 2014 when an order was made for the hearing of the matter to be at 2.15pm on 26 August 2015, and therefore had knowledge of the hearing date. At hearing Counsel for the Minister advised that endeavours by the Minister’s solicitor to contact the applicant in the lead-up to the hearing had been unavailing, he had not responded to any email sent to him, and the mobile telephone number on the application when rung indicated that the number was disconnected. The Court is satisfied that the applicant had knowledge of the hearing date.
The Court having read the grounds of review, the Tribunal Decision and the Minister’s Submissions, made orders at hearing as set out at [1] above.
Submissions
Applicant’s submissions
The applicant made no written submissions in relation to an extension of time, or otherwise in relation to the application, nor, by reason of his non-appearance at the hearing before the Court, did he make any oral submissions.
Minister’s submissions
With respect to an extension of time in which to make the Judicial Review Application the Minister submitted:
a)the Tribunal Decision is dated 13 August 2014. The Tribunal Decision was sent to the applicant by letter dated 15 August 2014: CB 199;
b)section 477(1) of the Migration Act provides that the Judicial Review Application had to be made within 35 days after the date of the Tribunal Decision. The applicant’s application to this Court was therefore required to be made by 17 September 2014. The application was not filed until 19 September 2014, and is two days out of time;
c)in the Judicial Review Application, the applicant does not apply for an order under s.477(2) of the Migration Act extending time in which to make the Judicial Review Application. The requirement for an application for an extension of time was brought to the applicant’s attention at the directions hearing before the Registrar on 29 October 2014, and an order (order 3.1) was made by the Registrar that any application for an extension of time had to be filed and served by 4 March 2015. The applicant has not filed any such application;
d)the Judicial Review Application is incompetent and the Court should dismiss the application on the basis that there is no application meeting the requirements of s.477(2) of the Migration Act, or any affidavit explaining the reasons for the delay as required by r.44.05(2)(c) of the Federal Circuit Court Rules 2001: see WZASQ v Minister for Immigration [2013] FCCA 1726 at [13] and [15] per Judge Lucev (“WZASQ”); Islam v Minister for Immigration [2013] FCCA 1687 at [16] per Judge Lucev; and
e)even if the applicant was to seek an extension of time and provide an affidavit explaining the delay, an extension of time should not be granted as:
i)the applicant was not in a de facto relationship with the Sponsor at the date of the Tribunal Decision, and for that reason alone the Judicial Review Application must fail;
ii)it is a requirement of cl.801.221(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) that in an application for the grant of a partner visa that the applicant meets the requirements of cl.801.221(2), (2A), (3), (4), (5), (6) or (8) of the Migration Regulations;
iii)as the Tribunal noted in the Tribunal Decision, the applicant did not claim to meet any of the requirements of cl.801.221(2A), (3), (4), (5), (6) or (8) of the Migration Regulations, and there was no evidence that he met any of those requirements: CB 197 at [21];
iv)as at the time of the Tribunal Decision the applicant was required to satisfy cl.801.221(2) of the Migration Regulations;
v)the applicant did not meet the requirements of cl.801.221(2)(b) of the Migration Regulations at the time of the Tribunal Decision as he was not at that time either the spouse or de facto partner of the Sponsor, as, on his own admission, the applicant and the Sponsor had ceased their de facto relationship on 6 February 2014; and
vi)it inevitably followed that the applicant failed to meet the requirements of cl.801.221(1) of the Migration Regulations at the time of the Tribunal Decision, and the Tribunal was therefore legally bound to affirm the Delegate’s Decision refusing to grant the applicant a Partner Visa.
Consideration – extension of time
Whether an application to extend time must be made in writing and whether the applicant must file an affidavit complying with r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”)
In Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [9]-[30] per Judge Lucev (“Sandan”) the Court found it is a mandatory requirement that an application for an extension of time:
a)be made in writing: Migration Act, s.477(2)(a); and
b)that the applicant file an affidavit in compliance with r.44.05(2)(c) of the FCC Rules.
The reasoning in Sandan at [9]-[30] per Judge Lucev (and similar reasoning in WZASQ at [11]-[12] per Judge Lucev and SZRBN & Ors v Minister for Immigration & Anor [2012] FMCA 384 at [28]-[30] per Nicholls FM (upheld on appeal in SZRBN v Minister for Immigration & Citizenship [2012] FCA 984)) should be taken to be incorporated in these Reasons for Judgment. Sandan was followed by this Court in Singh v Minister for Immigration & Anor [2015] FCCA 1991.
The applicant has not satisfied either of the mandatory requirements. The Judicial Review Application is therefore out of time and incompetent and should be dismissed under s.477(1) of the Migration Act on that basis, or alternatively for non-compliance with r.44.05(2)(c) of the FCC Rules.
Otherwise – factors for consideration in extending time
Lest there be error in the Court’s view that the Judicial Review Application is incompetent, or alternatively that it ought to be dismissed for non-compliance with r.44.05(2)(c) of the FCC Rules, the Court will address the factors usually considered in an extension of time application.
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established but not exhausted in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
WZASCv Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones; SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
In this case the delay is minimal, the application being two days out of time. There is, however, no explanation whatsoever for the delay, adequate or otherwise. As was observed in SZMWH v Minister for Immigration & Anor [2009] FCA 879 (“SZMWH”) the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J.
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end. Further, in the circumstances of this case, where, for reasons set out below, no jurisdictional error is established, that prejudice is compounded.
The impact on the applicant of a failure to extend time for making the Judicial Review Application will be negligible, as, for reasons set out below, the proposed Judicial Review Application has no reasonable prospect of success because no jurisdictional error is established. Furthermore, it can be inferred from the failure of the applicant to file an application for an extension of time in accordance with order 3.1 of the Registrar’s orders of 29 October 2014, and his non-appearance at hearing, that the applicant is not sufficiently concerned about the extension of time to bother arguing for it.
As to the interests of the public at large this matter is determinable on existing well understood and explained provisions in the Migration Act and Migration Regulations and applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interests of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
As to the merits of the Judicial Review Application, that is dealt with below.
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant applied for the Partner Visa on 21 November 2011 on the basis of his relationship with his sponsor, Jenna O’Donnell (“the Sponsor”): CB 1-33. On 22 August 2012 the applicant was granted a Partner (Temporary) (Class UK) Subclass 820 visa (“Temporary Partner Visa”): CB 1-33 and 81;
b)on 2 January 2014 the Department of Immigration and Border Protection (“the Department”) wrote to the applicant advising him of adverse information obtained following the Department’s checks to confirm the information in his Partner Visa application. The Department’s 2 January 2014 letter also put to the applicant a Departmental officer’s conversation on 27 June 2013 with the Sponsor who had advised that she had not been in a spousal relationship with the applicant for about 13 months, that they were friends, and that he paid her $1,000 to assist him to get permanent residency in Australia. The applicant was invited to comment on this unfavourable information, and advised that the information should be provided within 28 days of receiving the letter and that if he failed to respond to the Department’s 2 January 2014 letter a decision on his application might be made based on the information available to the Department: CB 111-113;
c)there was no response by the applicant to the Department’s 2 January 2014 letter, and on 6 February 2014 the Delegate in the Delegate’s Decision refused the applicant’s application for a Partner Visa. The Delegate was not satisfied that the applicant and the Sponsor were in a genuine de facto relationship, and therefore concluded that the applicant did not satisfy the criteria for the grant of a Partner Visa: CB 133 and 137-140;
d)on 17 February 2014 the applicant applied to the Tribunal (then the Migration Review Tribunal) for review of the Delegate’s Decision. On 17 June 2014 the Tribunal invited the applicant to appear at a hearing before the Tribunal on 12 August 2014, and requested that any additional documents or information upon which he wished to rely during the Tribunal hearing be provided to the Tribunal by 5 August 2014. No documents were provided. The applicant appeared before the Tribunal on 12 August 2014 to give evidence and present argument: CB 158-159, 177 and 190-192; and
e)on 13 August 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Partner Visa. The applicant was notified of the Tribunal Decision by letter dated 15 August 2014: CB 193 and 199.
Tribunal Decision
The principal issue before the Tribunal was whether the applicant and the Sponsor were in a de facto relationship at the time of the Tribunal Decision. The Tribunal understood this, and understood it to be the principal issue: CB 194 at [5]-[7].
The applicant claimed that the Delegate’s Decision was wrong and that at the time of the Delegate’s Decision he was in a relationship with the Sponsor and that the relationship was genuine: CB 195-196 at [12] and [14]. However, at the Tribunal hearing the applicant told the Tribunal that he was no longer in a relationship with the Sponsor and that the relationship had ceased on 6 February 2014 when the Delegate’s Decision was made “and that he found out what his partner said”: CB 195 at [10].
The Tribunal explained to the applicant that there were three exceptions where a relationship breaks down where it may still be possible for a visa to be granted, and then confirmed with the applicant that the Sponsor was still alive, there were no children born of the relationship who were Australian citizens (and no children of the relationship in any event) and there had been no family violence during the relationship: CB 195 at [10]-[11].
The applicant told the Tribunal that the Delegate’s Decision was wrong in saying that the relationship with his Sponsor was not genuine at the time of the Delegate’s Decision: CB 195 at [12]. The Tribunal said that the fact that the relationship with the Sponsor had now ceased was a consideration for the Tribunal at the time that the Tribunal had to decide the matter: CB 195 at [12], and went on to indicate that it had concerns about the claims that the applicant was in a relationship with the Sponsor at the time of the Delegate’s Decision: CB 195 at [13]. The following issues were discussed:
a)the fact that the Sponsor had moved out of the home she shared with the applicant and into her mother’s home some months before the Delegate’s Decision, to which the applicant indicated that it did not mean that they were no longer together: CB 195 at [13];
b)that the applicant and the Sponsor had, according to the applicant, travelled to Bali earlier that year, and he nominated December 2013 or January or February 2014, but had no response when the Tribunal pointed out that movement records indicated that his Sponsor had not departed Australia for some time: CB195 at [13];
c)the applicant’s insistence that he was in a genuine relationship with his Sponsor at the time of the Delegate’s Decision, in respect of which he raised issues as to the residential address at which the Department’s officers made a site visit, and claimed that he and the Sponsor had joint accounts and household bills, and maintained that at the time of the Delegate’s Decision he was in a genuine relationship with the Sponsor: CB 196 at [14]; and
d)the applicant said that he was not able to obtain further assistance with the Tribunal hearing because he could not afford to pay his lawyer any more, and he was unaware of the relevant processes and requirements. The applicant sought additional time to find a lawyer and return to the Tribunal with all of the necessary documents. The applicant, upon enquiry by the Tribunal said that the purpose of the adjournment was to get a lawyer to assist him. The Tribunal observed that he had had considerable notice of the Tribunal hearing and the issues, and noted that the applicant’s representative had notified the Tribunal of ceasing to act for the applicant on 21 July 2014 (the Tribunal hearing was on 12 August 2014). The Tribunal did not agree to the request for an adjournment, not being satisfied that the applicant had not had sufficient notice of the hearing or the issues or was unable to obtain the assistance of a representative prior to the Tribunal hearing: CB 196 at [14].
Importantly, the Tribunal went on to observe as follows at CB 196 at [15]:
15.The Tribunal is satisfied that the criteria it has to consider and that the applicant is required to meet is the criteria at the time of the Tribunal’s decision. The Tribunal is not required to consider whether the Department made the correct assessment of the criteria at the time of its decision. Rather, the Tribunal has to consider whether the applicant meets the requirements of cl.801.221 at the time of the Tribunal’s decision.
Based on the applicant’s oral evidence, the Tribunal was not satisfied that the applicant was the de facto partner of the Sponsor as he was not in a ‘spousal’ relationship with the Sponsor at the time of its decision. The Tribunal was therefore satisfied that the applicant did not meet the requirements of cl.801.221(2)(c) or (2A)(b) of the Migration Regulations 1994: CB 196 at [16].
As there was no evidence before the Tribunal that the applicant met the alternative criteria in cl.801.221(2A), (3), (4), (5), (6) or (8) of the Migration Regulations, and the applicant had not claimed that he did meet any of those alternative criteria, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Partner Visa and affirmed the Delegate’s Decision: CB 196-197 at [18]-[23].
Grounds of the Judicial Review Application
There are seven grounds of the Judicial Review Application alleging that the Tribunal erred on various bases. Each ground is set out and considered further below: see [35]-[60] below.
Consideration – grounds of review of proposed Judicial Review Application – whether jurisdictional error
Statutory criteria
Clause 801.221 of the Migration Regulations provides as follows:
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2) 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.
(2A) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and
(b) the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).
(3) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).
(4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).
(5) An applicant meets the requirements of this subclause if the applicant:
(a) is the holder of a Subclass 820 visa; and
(b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
(c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(d) has developed close business, cultural or personal ties in Australia.
(6) 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) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975 ; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.
(6A) Paragraphs (2)(d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.
(7) Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:
(a) refusing to grant a Subclass 801 visa; or
(d) approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).
(8) The applicant meets the requirements of this subclause:
(a) if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and
(b) if the Tribunal:
(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or
(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
It is apparent from the outline of the Tribunal Decision set out above: see [23]-[29] above, that the Tribunal identified the relevant issues, asked the right questions, relied on appropriate factual material, did not ignore any relevant factual material, an exercised its power properly and within jurisdiction: Yusuf. Importantly, the Tribunal identified (at CB 196 at [15]) that its consideration of the relevant criteria was to be made at the time of the Tribunal Decision, not the time of the Delegate’s Decision. In that respect, whilst the Delegate’s Decision is important in putting the applicant on notice of what the issues for the Tribunal hearing might be, it is equally important, particularly for present purposes, that the Tribunal hearing is a fresh hearing of the issues (a hearing de novo) and not simply a review of the correctness of the Delegate’s Decision: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194; (2000) 74 ALJR 1348; (2000) 174 ALR 585; (2000) 99 IR 309 at [13] per Gleeson CJ, Gaudron and Hayne JJ; Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615 at [15] per Gray J.
Ground 1
Ground 1 is that the Tribunal Decision was affected by jurisdictional error in that it failed to comply with its obligation under s.348 of the Migration Act to fully and properly review the Delegate’s Decision.
There are no particulars in support of Ground 1. The failure to particularise a ground of review is sufficient basis for it to be dismissed: SZLEX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, followed in WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969). Further, ground 1 has no merit. The applicant’s complaint that the Tribunal failed to “fully and properly” review the Delegate’s Decision suggests that the applicant is seeking impermissible merits review of the Tribunal Decision. The Tribunal concluded that as at the date of the Tribunal Decision the applicant did not satisfy any of the provisions of cl.801.221 of the Migration Regulations. On the evidence and submissions before the Tribunal that conclusion was correct. That conclusion was one of fact and is not reviewable on judicial review by this Court. Ground 1 involved no jurisdictional error and must, therefore, fail.
Ground 2
Ground 2 is that the Tribunal failed to conduct a review of all the circumstances of the relationship as a separately identified analysis of the facts that it was compelled to do pursuant to reg.1.15A of the Migration Regulations.
The applicant’s reference to reg.1.15A of the Migration Regulations is incorrect. The applicant’s claimed de facto relationship with the Sponsor means that reg.1.09A of the Migration Regulations applies, which is, however, in similar terms to reg.1.15A of the Migration Regulations. No particulars are provided in support of Ground 2 and the applicant has not identified what “circumstances of the relationship” were not considered by the Tribunal. In any event, the ground is illogical in light of the applicant’s admission to the Tribunal that he was no longer in a de facto relationship with the Sponsor, the relationship having ceased on 6 February 2014. Because the Tribunal had to consider the relevant criteria at the date of the Tribunal Decision there were no “circumstances of the relationship” to consider as at that date. In the absence of a relationship with the Sponsor, and with none of the exceptions (which were canvassed by the Tribunal at hearing) applicable, the Tribunal was not required to consider the circumstances of the then non-existent relationship. Ground 2 does not give rise to any jurisdictional error therefore by the Tribunal, and must, therefore, fail.
Ground 3
Ground 3 is that the Tribunal denied the applicant an opportunity for a legally compliant, properly structured, objective review of the Delegate’s Decision.
There are no particulars supplied in support of Ground 3. It appears to be directed to a merits review of the Tribunal Decision. The Tribunal Decision identifies the relevant issues: CB 194 at [5]-[6], and then addresses those issues by reference to the relevant criteria, and in particular whether at the time of the Tribunal Decision there was, in fact, a spousal relationship between the applicant and the Sponsor. The Tribunal, on the basis of the applicant’s own evidence, arrived at the only conclusion properly available to the Tribunal when applying the criteria to the facts, which was that there was not such a spousal relationship. Ground 3 is not made out, and as such, involves no jurisdictional error, and must, therefore, fail.
Insofar as ground 3 might allege a denial of procedural fairness that issue is dealt with below: see [53]-[60] below.
Ground 4
Ground 4 is that the Tribunal failed to pursue the objective of providing a mechanism which was fair and failed to act according to substantial justice and the merits of the case, contrary to s.353 of the Migration Act.
The applicant’s reliance upon s.353 of the Migration Act to establish jurisdictional error is misconceived. Section 353 of the Migration Act serves a facultative rather than restrictive purpose and does not give rise to grounds for judicial review based on a failure to comply with its exhortations: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [12]-[16] per French CJ, [51]-[52] per Hayne, Kiefel and Bell JJ and [96]-[98] per Gageler J (“Li”). It is an error to treat the directions in s.353 of the Migration Act as giving rise to grounds for judicial review: Li at [16] per French CJ, and, therefore, in its terms, alleging as it does that the Tribunal acted “contrary to s353 of the Migration Act” this ground cannot succeed.
In any event, there is nothing in the unparticularised ground 4 which suggests that the Tribunal failed to provide a mechanism of review that was fair or failed to act according to substantial justice and the merits of the case. Rather, the contrary is true. The Tribunal, against the background of the Delegate’s Decision which effectively put the applicant on notice that there were significant issues to be addressed in any review by the Tribunal, including whether or not the applicant was in a relationship with the Sponsor, invited the applicant to a Tribunal hearing, gave the applicant the opportunity to be heard, and put to the applicant the relevant issues, and in particular the relevant issue of whether or not he was in an ongoing relationship with the Sponsor at the time that the Tribunal was required to make a decision. That was a process which was fair because it gave the applicant an opportunity to be heard in relation to the issues, and in particular, the critical issue of whether or not he was in a relationship with the Sponsor. In the circumstances, ground 4 is not made out, and does not disclose any jurisdictional error, and must, therefore, fail.
To the extent that ground 4 raises issues of procedural fairness per se that is deal with below: see [53]-[60] below, and to the extent that it raises an issue of Li unreasonableness, that is also dealt with below: see [56]-[60] below.
Ground 5
Ground 5 is that the Tribunal failed to consider the probative value of evidence about the genuine nature of the applicant’s relationship with the Sponsor, and made an erroneous finding and mistaken conclusion in a way which amounted to jurisdictional error.
The applicant had to make out the factual basis for his application: Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALR 347; (1994) 34 ALD 347 at 348 per Heerey J. The Tribunal was not obliged to make the applicant’s case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549; FCR at 169-170 per Wilcox J. In the context of s.353(2)(a) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence, the judgment of the Full Court of the Federal Court in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307; (2013) 133 ALD 39; (2013) 59 AAR 221 (“Rawson Finances”) dealt with the concept of rationally probative evidence in the context of a tribunal which was not a court and which was not bound by the rules of evidence. Relevant passages from Rawson Finances are helpfully extracted in Nguyen & Anor v Minister for Immigration & Anor [2013] FCCA 1441 at [62]-[64] per Judge Barnes as follows:
62. In Rawson Finances what was in issue was whether a particular finding of the AAT was or was not open on the evidence or whether there was no evidence capable of supporting that finding. Before considering that issue Jessup J concluded (at [62]) that having regard to the legal framework within which the AAT’s fact-finding function was set, while it was not a court and was not bound by rules of evidence, “[i]t must, however, proceed by reference to “rationally probative evidence” rather than on mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685; 4 ALD 139 at 156; 1A IPR 708 at 724.’” However his Honour suggested that if the particular finding in issue had been made by inference, no error of law would be established as long as there was some basis for the inference. Jessup J pointed out at [66] that:
In hard cases, it is often the function of a tribunal of fact to resolve controversies as between relatively “evenly balanced” evidentiary material. Once a finding is made one way or the other, it resolves the issue of even balance. It is for the Tribunal of fact to make that finding, and no error of law is disclosed merely by reason that the finding was made upon primary materials which appeared to be evenly balanced. It is, of course, another matter altogether if it appears that the finding was the result of guesswork or conjecture, but such a conclusion is not to be reached merely because the Tribunal had evenly balanced material before it.
63. In the same case Jagot J (with whose reasons Nicholas J agreed) stated (at [83] – [84]):
… if there is some evidence which reasonably admits of different conclusions as to the existence of a fact or not, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, it is only whether the evidence could have supported the factual finding which constitutes a question of law. By contrast, the question whether evidence should or should not have led to a finding of fact is not a question of law. In the present context “evidence”, a term used in civil litigation, means the whole of the material before the Tribunal.
The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction, which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Australian Broadcasting Tribunal v Bond at 359/360) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be ‘completely arbitrary’ (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at 16, Minister for Immigration & Multicultural Affairs v Eshetu [1999] 197 CLR 611; [1999] HCA Q1 at 145 and Minister for Immigration & Multicultural Affairs v SGLB [2004] 78 ALD 224; [2004] HCA 32 at 38), the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of fact and no logical grounds to support the fact, the finding of that fact will involve an error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.
64. Her Honour explained that, as Buchanan J had noted in Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76 at [125], there is “a difference between a finding not reasonably open on the evidence and a finding reached on other than logical grounds” and suggested that while the former involved findings not supported by some evidence and was always an error of law, the latter merely involved faulty reasoning and generally would not be characterised as an error of law. Jagot J stated that where what was suggested was illogicality or faulty inferential reasoning, the test was not whether there was an error in logic or reasoning, but whether there was no foundation for the conclusion reached (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [130], [131] and [135]).
A statutory provision not dissimilar to that in s.353 of the Migration Act was dealt with by the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 77 (“Lawler”) in relation to the performance and functions of the then Fair Work Australia (“FWA”). The Full Court of the Federal Court observed that the statutory provision gave the members of FWA a statutory mandate to get to the heart of matters as directly and effectively as possible: Lawler at [25] per Buchanan J (with whom Marshall and Cowdroy JJ agreed). The same statutory mandate exists under s.353 of the Migration Act, and was fulfilled by the Tribunal in this matter by having regard to the rationally probative evidence of the applicant that he was no longer in a relationship and therefore unable to meet the relevant criteria under cl.801.221 of the Migration Regulations. Evidence about the allegedly genuine nature of the applicant’s relationship at the time of the Delegate’s Decision was not, in light of the applicant’s admission that that relationship was over by the time of the Tribunal hearing, rationally probative of any issue to be determined by the Tribunal, and therefore had no probative value whatsoever. In the circumstances, ground 5 is not made out, does not disclose jurisdictional error, and must, therefore, fail.
Ground 6
Ground 6 is that the Tribunal failed to give information to the applicant that the Tribunal considered would be the reason, or part of the reason, for affirming the Delegate’s Decision, contrary to ss.359AA or 359A of the Migration Act.
The obligation in s.359A of the Migration Act to give to the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the Delegate’s Decision, does not apply to information that the applicant gave for the purpose of the application for review: s.359A(4)(b) of the Migration Act. The Tribunal Decision was based on the evidence given by the applicant at the Tribunal hearing that his relationship with the Sponsor ceased on 6 February 2014. There was, therefore no failure by the Tribunal to comply with s.359A of the Migration Act.
As no information was required to be given to the applicant under s.359A of the Migration Act, s.359AA of the Migration Act had no application to the matter.
In all of the above circumstances, ground 6 has not been made out and does not disclose jurisdictional error, and must, therefore, fail.
Ground 7
Ground 7 is that by reason of the foregoing, the Tribunal acted in a way that was not fair or just, contrary to the requirements of natural justice in s.357A of the Migration Act.
Section 357A(3) of the Migration Act requires the Tribunal, in applying Division 5 of Part 5 of the Migration Act, to act in a way that is fair and just.
The applicant was invited to attend a hearing before the Tribunal on 12 August 2014. The applicant accepted that invitation, and at the Tribunal hearing was given the opportunity to give evidence and present arguments in accordance with s.360 of the Migration Act. The Tribunal hearing invitation dated 17 June 2014 requested that the applicant provide documents to the Tribunal by 5 August 2014. The applicant, who until at least 21 July 2014 was represented by a registered migration agent with a legal qualification: CB 184-186, failed to provide any documents before the Tribunal hearing.
At the Tribunal hearing, the applicant requested an adjournment so that he could obtain legal assistance and provide documents. The Tribunal refused the applicant’s request as it was not satisfied that the applicant had not had sufficient notice of the Tribunal hearing or the issues or was unable to obtain the assistance of a representative prior to the hearing: CB 196 at [14].
The Tribunal did not act unreasonably in refusing the applicant’s request for an adjournment. The applicant had an opportunity to provide relevant documents to the Tribunal before the Tribunal hearing, but did not do so. Why the applicant did not do so is probably obvious: there were no documents to provide in view of the fact that the relationship with the Sponsor had ceased, on the applicant’s account, at least six months previously. Further, the applicant had the opportunity to address the Tribunal at hearing, and did so. Although the applicant requested an adjournment at the Tribunal hearing, given the applicant’s evidence that his de facto relationship with the Sponsor had ceased on 6 February 2014, the granting of an adjournment could not, unlike the position in Li, have affected the Tribunal Decision.
Under s.357A of the Migration Act, Division 5 of Part 5 (which contains ss.360 and 362B of the Migration Act), is taken to be an exhaustive statement of the requirements of the procedural fairness hearing rule in relation to the matters it deals with. Having regard to:
a)the Tribunal’s compliance with the statutory obligations under s.360 of the Migration Act;
b)the applicant’s failure to provide any relevant documents before or at the scheduled Tribunal hearing; and
c)the lack of any utility in an adjournment of the hearing, as sought by the applicant, in light of the absence of any relationship with the Sponsor, and therefore an inability on the part of the applicant to meet the relevant criteria for the grant of the Partner Visa,
the Tribunal’s determination of the application without taking any further action to adjourn the matter cannot be characterised as an unreasonable exercise of a discretionary power in the Li sense.
The applicant’s allegation of a denial of procedural fairness by the Tribunal is without any proper basis. The Tribunal complied with its obligations under Division 5 of Part 5 of the Migration Act, including its obligations under ss.360 and 362B of the Migration Act, and did not err in exercising its power under the latter section. There was, therefore, no jurisdictional error by the Tribunal in not granting the adjournment sought by the applicant at the Tribunal hearing
In all of the above circumstances, ground 7 is not made out, and does not disclose jurisdictional error in the Tribunal Decision, and must, therefore, fail.
Further observations
Even if there were some jurisdictional error in the Tribunal Decision, the Court would not in the exercise of its discretion in granting prerogative relief, grant such relief. Put shortly, there are two reasons for that:
a)the applicant has not suffered any practical injustice: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502 (2003) 72 ALD 613; CLR at [25]-[29] and [34] per Gleeson CJ, [61]-[67] and [81]-[83] per McHugh and Gummow JJ, and [111] per Hayne J; and
b)in the absence of any relationship with the Sponsor, a remittal to the Tribunal “would lack utility”: SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1; FCR at [232] per Allsop J, or would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, upheld on appeal: Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J.
Conclusion on merits of proposed Judicial Review Application
In all of the above circumstances, the Judicial Review Application has no reasonable prospects of success, even if time were to be extended. Indeed, in the absence of a relationship between the applicant and the Sponsor, it must be said that the Judicial Review Application, as with the application for review to the Tribunal, is wholly without merit, and should never have been made.
Conclusions and orders
The Court has concluded that:
a)there is no application for an extension of time in which to file the Judicial Review Application, and the Court therefore has no jurisdiction to entertain the Judicial Review Application, and it must be dismissed as incompetent by reason of s.477 of the Migration Act;
b)even if there were a competent application for an extension of time, the Court would not grant an extension of time, because:
i)of the applicant’s non-compliance with r.44.05(2)(c) of the FCC Rules; and
ii)an extension of time was not necessary in the interests of the administration of justice, because, for reasons set out above the Judicial Review Application has no reasonable prospects of success,
and an order would be made dismissing the application for an extension of time, in which circumstance the Court is not required to make an order dismissing the Judicial Review Application: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; Johnson v Minister for Immigration & Anor [2015] FCCA 610 at [43] per Judge Lucev; and
c)even if an extension of time were to be warranted, the Judicial Review Application is without merit, because the Tribunal Decision is free from jurisdictional error, and the Court would therefore have, in any event, ordered that the Judicial Review Application be dismissed.
The primary effect of the above conclusions is that there is no application for an extension of time, and the Court is, therefore, without jurisdiction to hear the Judicial Review Application. In those circumstances, the appropriate order is that the application be dismissed as incompetent under s.477 of the Migration Act, and an order to that effect, together with other orders, was made on 26 August 2015.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 September 2015
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