MZZXN v Minister for Immigration and Border Protection

[2021] FCCA 1485

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXN v Minister for Immigration and Border Protection [2021] FCCA 1485

File number(s):

MLG 2584 of 2017

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

30 June 2021

Catchwords:

MIGRATION – application to reinstate – Administrative Appeals Tribunal decision –  protection visa – application to set aside a Registrar’s order – dismissal of application in a case

Legislation:

Federal Circuit Court Rules 2001, r 16.05

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) cl. 820.211

Cases cited:

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

MZZXN v Minister for Immigration and Border Protection [2015] FCA 503

MZZXN v Minister Immigration & Anor [2015] FCCA 73

Number of paragraphs:

46

Date of last submission/s:

15 March 2021

Date of hearing:

15 March 2021

Place:

Melbourne

The Applicant

Appeared in person

Solicitor for the Respondent

Australian Government Solicitor

ORDERS

MLG 2584 of 2017
BETWEEN:	MZZXN Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
AND:	ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	30 JUNE 2021

THE COURT ORDERS THAT:

1.The applicant name be changed to be referred to as ‘MZZXN’ in these proceedings.

2.The Application in a Case filed on 16 August 2018 be dismissed.

3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

1. The applicant in this matter applied to set aside orders made by a Registrar dismissing his judicial review proceedings on 8 August 2018, when the applicant failed to attend court to prosecute his application.

2. The application to set aside the dismissal orders was supported by a very brief Affidavit that simply said:

   Please kindly re-open my case as I misunderstood that my first hearing in on 18/08/2018 but it was on 08/08/2018. I really apologise and I so upset how this happened with me, I am so depressed and have some mental illness which cause this mistake.

3. As the applicant has previously sought a protection visa and had a pseudonym assigned, I will direct that the applicant be referred to by his pseudonym in these proceedings to ensure that this judgment does not indirectly disclose his identity with respect to his substantive protection visa application.

   PROCEDURAL CONSIDERATIONS

   Adjournment Application

4. When the matter was heard on 15 March 2021 before this court, the applicant appeared and sought an adjournment, saying that he had not had time to see a lawyer, as he only received a Notice of Listing on 5 March 2021. I note, however, that the applicant said that he had been ready in June 2020. The applicant said that he had found a lawyer, whom he could only identify as ‘George’ but said that he needs to meet the lawyer and re-read the information. The Notice of Listing had been sent by the court on 2 December 2020, and the Minister also sent a letter to the applicant following that Notice of Listing.

5. The applicant produced a medical certificate that was not addressed to any particular person, certifying that he had attended upon a doctor on 12 March 2021 and that:

   He has been diagnosed with and treated for depression. He presented today with symptoms of acute stress.

6. It is unclear who diagnosed or treated the applicant for depression, nor the nature of his alleged depression. The certificate does not describe the nature of the stress he was suffering when attending upon the doctor, nor whether it would have impeded him from participating in a hearing.

7. In light of the delays that have already occurred in the matter, it is apparent that the applicant has had more than adequate time to engage a lawyer and prepare for the hearing between the time of his application to set aside the dismissal orders, filed in August 2018, and the date of this hearing in March 2021 (in total approximately 2.5 years). The applicant did not give evidence of having actually engaged a particular lawyer to represent him: he was unable to even give a lawyer’s full name. I therefore refused his application to adjourn the proceedings.

   Further submissions

8. The applicant made no submissions in support of his application to set aside the dismissal orders, however, I allowed him a further 28 days to make any submissions in writing. No submissions have been forthcoming despite more than ten weeks passing.

9. Counsel for the Minister did not seek to cross-examine the applicant on his Affidavit. In the circumstances, I accept what was said in the brief Affidavit, providing an explanation for his failure to appear before the Registrar based upon an error with respect to dates. Whilst it is far from a compelling explanation, it is plausible and sufficient in the context of this case.

10. I therefore turn to consider the merits of the substantive application. I note the approaches discussed in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 (albeit that the judgment concerned a different provision).

    BACKGROUND

11. On 20 November 2012, the applicant arrived in Australia on a student visa which was valid until 17 March 2014.

12. On 5 March 2013, the applicant applied for a protection visa. This visa was refused on 23 August 2013 by a delegate for the Minister. The delegate’s decision was affirmed by the (then) Migration Review Tribunal on 4 December 2013. A judicial review application was filed in this court on 16 December 2013, and the application dismissed on 29 January 2015: see MZZXN v Minister Immigration & Anor [2015] FCCA 73. The applicant appealed the dismissal decision, and the appeal was dismissed by the Federal Court of Australia: see MZZXN v Minister for Immigration and Border Protection [2015] FCA 503.

13. On 9 November 2016, the applicant applied for a Temporary Partner visa and Partner (Residence) visa. The applicant was sponsored by his partner, Ms JV. The partner visa applications were refused by a delegate of the Minister on 3 February 2017, on the grounds the applicant failed to meet cl. 820.211(2)(d) of the Migration Regulations 1994 (Cth).

14. The applicant applied for review of that decision on 23 February 2017. The Administrative Appeals Tribunal (‘Tribunal’) invited the applicant to a hearing scheduled for 9 May 2017. On that date a representative for the applicant wrote to the Tribunal, providing a medical certificate and seeking an adjournment. The Tribunal adjourned the hearing to 30 May 2017. On that date, the applicant attended and the hearing was adjourned again to 7 July 2017. On 5 July 2017, the applicant’s migration agent, Mr Vassiliou emailed submissions and documents to the Tribunal, and on 7 July 2017, the applicant and migration agent attended the Tribunal hearing.

15. Post hearing submissions were emailed to the Tribunal on 28 July 2017. On 1 November 2017, the Tribunal affirmed the decision of the delegate. That decision is the subject of the present judicial review proceedings.

    Applicant’s Case before the Tribunal

16. The applicant and his partner (the sponsor for his partner visa application), met in May 2015 and decided to marry in September that year. However, the parties never married. They never lived together, which the applicant says was because of his Muslim faith and the sponsor having 3 children from a previous relationship living with her.

17. Paragraph [14] of the decision the Tribunal identified that:

    The applicant did not lodge this visa application within 28 days of his last substantive visa. This visa application was lodged over 2 years out of time. As a result the applicant could only be granted the visa if there were ‘compelling reasons for not applying’ the time limit: see cl 820.211(2)(d).

18. The Tribunal traversed the many matters put forward by the applicant and his migration agent.

19. The Tribunal expressed concerns about the applicant’s credibility:

    12.The Tribunal has concerns about the applicant's credibility in terms of the vague and confusing claims about having suffered family violence at the hands of his sponsor, just as the applicant was attending an initial hearing with the Tribunal when the sponsor told the applicant she no longer wanted to stay with him and would not be attending the Tribunal hearing.

20. The Tribunal doubted the applicant’s initial protection claims on the following grounds:

    17.The applicant at hearing stated that he had wanted to return to Pakistan but that the sponsor would not let him as she could not live without him. The Tribunal noted, therefore, that his previous claims to fear persecution/serious harm on return to Pakistan given he was prepared to return there, does leave the Tribunal to question whether his initial protection claims were not spurious.

21. With respect to the sponsor’s claims of family violence, for which she was receiving support from the applicant, the Tribunal found:

    18.The Tribunal accepts that the applicant may have played an important support role in the life of the sponsor, whether as a spouse or in some other capacity. The Tribunal places some weight on this matter. Nonetheless, the applicant’s sudden claims of family violence just as the applicant’s avenues for remaining in Australia, and when the sponsor was no longer prepared to the evidence up until the review hearing pointed to the sponsor as being very dependent on, support him at the review hearing, are questionable. This is particularly so as and supportive of the applicant.

22. In relation to the relationship breakdown between the applicant and the sponsor, the Tribunal found the following:

    20.… Whatever the circumstances of the parties’ break up, whether due to family violence or some other issue, the fact of the matter is that the applicant and the sponsor are no longer in a relationship. While previously the sponsor may have been dependent and supported by the sponsor, at the time of writing this decision the parties are no longer in a relationship and therefore the Tribunal does not now find that the applicant’s support of the sponsor and her children constitutes compelling reasons for waiving the Schedule 3 criteria.

    21.The Tribunal appreciates that the breakdown of a relationship is distressing in any circumstance, however, the Tribunal is not satisfied that such a break down in itself constitutes compelling reasons for waiving the Schedule 3 criteria. Unfortunately such break ups are a feature of many relationships and not particular to the applicant. The Tribunal has had regard to the migration agent’s submissions, including that received on 5 July 2017 arguing:

    The review applicant advises that his partner (sic) to abuse him before 8 May 2017 when she told the applicant that she would not attend the first hearing. He advises that he tolerated her abuse of his love, generosity and compassion throughout the period he was with the sponsor. He states that he was scared to stand up to her. The review applicant advises that 8 May was a critical day for him. He advises he discovered that the (sic) Jennifer no longer wished to be his sponsor.

23. Unsurprisingly, the Tribunal did not accept that there were compelling reasons in this case and refused the visa application.

    APPLICATION FOR JUDICIAL REVIEW

24. The substantive application for judicial review filed on 28 November 2017, sets out eleven grounds. It is appropriate to consider each of the grounds.

    Grounds 1 and 2

25. The first two grounds are framed as:

    1.At Paragraph 14 the Member has made an illogical statement and in reaching her conclusion has made an error in law.

    At paragraph 14 the Member uses illogical reasoning to reach a conclusion which is adverse to my case. The member has claimed or infers that the only time one can play a significant role is when one lives with a person. In my case I did spend time with my partner and her children. As I have indicated to the Tribunal I stayed with my partner and her children and was supportive of them and assisted them as best as I could. To play a significant role in the lives of the girls in question does not require me to stay overnight in the same house. As I have said to the Tribunal I did not sleep overnight at the house of my partner and her daughters.

    2.The Tribunal failed to consider or understand that I had a long standing relationship with my partner.

    At Paragraph 15 of the Decision the Member makes a finding that \have never lived together with my partner. I had indicated at the Tribunal hearing that I did not stay overnight with my partner for religious reasons and for reasons which a based on the respect of my partner's wishes.

26. The relevant paragraphs of the reasons of the Tribunal provide:

    14.At hearing it was advanced that the parties had met in May 2015 and in September 2015 made a decision to marry. The parties never married, although evidence has been submitted to demonstrate that they were intending to marry on 11 July 2017. The parties during their relationship never lived together either because, it is claimed, of the applicant's Muslim faith and because the sponsor has three girls from previous relationship(s), aged 19, 14 and 12 living with her, which in itself undermines his claims that the sponsor's daughters were reliant on him and that he played a significant role in their lives.

    15.Given the parties have never lived together it is also difficult to ascertain whether the relationship was a long-standing one of two years duration or more. While living together is not necessarily an indicator that parties have commenced a committed relationship, given the Tribunal's other concerns in this case, the Tribunal is not satisfied that the parties up until the break-up had been in a longstanding relationship of two or more years duration which policy requires a decision maker to have regard to in assessing whether there are compelling reasons for waiving the Schedule 3 criteria.

27. These findings of fact were clearly open to the Tribunal member on the material before them. Neither ground appears to be arguable.

    Grounds 3 and 11

28. These grounds make claims of illogical reasoning and are in the following terms:

    3.The Tribunal makes an illogical finding that undermines my character and credibility.

    At Paragraph 17 the Member questions my credibility and infers that I have made a bogus protection visa application if I considered returning to Pakistan. The Tribunal has gone beyond its powers to go over the Protection application and use this reasoning to undermine my creditability with regards my partner visa application.

    …

    11.      The Tribunal shows illogical reasoning and asks the wrong questions.

    At paragraph 37 the Tribunal makes an illogical and unreasonable assessment of the safety and security of Pakistan without calling for evidence on this matter. The Tribunal does not take into consideration my personal health and mental health and how this will impact on my ability to resettle in Pakistan. In failing to consider all of the above the Tribunal has made an error in law.

29. It was open to the Tribunal to compare the applicant’s differing positions about returning to Pakistan. It is unsurprising that his claim of wanting to return to Pakistan was seen as inconsistent with a claim that he sought a protection visa to avoid returning to Pakistan. The findings appear to have been open to the Tribunal on the material before it, without having to make further enquiries. These grounds do not appear to be arguable.

    Grounds 4, 5, 6, and 9

30. These grounds allege that the Tribunal Member failed to consider relevant evidence, saying:

    4.The Tribunal uses illogical reasoning and fails to take into consideration evidence before it regarding my spouse's mental health.

    At Paragraph 18 the member fails to understand my partner's mental health condition as the reason for the 'sudden claim of family violence. AS stated at the Tribunal hearing that I was shocked at my partner's sudden withdrawal from sponsorship. I also stated to the Tribunal that I had lived in fear of such a change of support.

    5.The member fails to take into consideration the cumulative factors wit regards the support given to the partner by me. As a factor requiring my assistance not only for my partner and my partner's children. Moreover that member failed to understand that I had been in a long term relationship of more than two years as factors required to be considered in waiving the Schedule 3 requirement. The next step should have been for the Member to consider family violence perpetrated upon me by my partner. I say there is no contradiction in my claims of violence I in spite of the inference that a statement was provided by my partner stating that I was emotionally supportive of my partner. The violence against me can be perpetrated upon me by my partner during my relationship even though I am emotionally supportive of her.

    6.The Tribunal does not ask the right question.

    At Paragraph 22 the Member draws conclusion without really understanding the motivations for my sponsor's withdrawal of sponsorship.

    …

    9.        The Tribunal has asked the wrong question

    At paragraph 30 the Tribunal does not understand the reasons for the Diversion Plan and this impacts on the partner and her mental health.

31. However, all of these matters were expressly considered by the Tribunal Member in the decision, where paragraphs [15], [16], [18], [20] and [30] provide:

    15.Given the parties have never lived together it is also difficult to ascertain whether the relationship was a long-standing one of two years duration or more. While living together is not necessarily an indicator that parties have commenced a committed relationship, given the Tribunal's other concerns in this case, the Tribunal is not satisfied that the parties up until the break-up had been in a longstanding relationship of two or more years duration which policy requires a decision maker to have regard to in assessing whether there are compelling reasons for waiving the Schedule 3 criteria.

    16.The applicant has submitted a letter from a doctor, dated 15 November 2016, stating that the applicant's sponsor suffered from mental health issues involving anxiety/depression and was under the care of a psychologist and had been taking medication. The doctor has written that the sponsor was going to church regularly and that th is assisted her and that she had a supportive partner in the applicant who was trying to assist her manage her symptoms of anxiety/depression with spiritual help. Evidence was also submitted of the sponsor having sustained serious and continuing family violence from her previous partners which has resulted in her mental health conditions and that she was under a mental health care plan. The Tribunal accepts that the applicant's former sponsor suffers from mental health issues as a result of being the victim of serious family violence.

    …

    18.The Tribunal accepts that the applicant may have played an important support role in the life of the sponsor, whether as a spouse or in some other capacity. The Tribunal places some weight on this matter. Nonetheless, the applicant’s sudden claims of family violence just as the applicant’s avenues for remaining in Australia, and when the sponsor was no longer prepared to support him at the review hearing, are questionable. This is particularly so as the evidence up until the review hearing pointed to the sponsor as being very dependent on, and supportive of the applicant.

    …

    20.The matter of family violence aside, the Tribunal is required to assess whether there are compelling reasons now and not just at the time of application as per Waensila v MIBP. Whatever the circumstances of the parties’ break up, whether due to family violence or some other issue, the fact of the matter is that the applicant and the sponsor are no longer in a relationship. While previously the sponsor may have been dependent and supported by the sponsor, at the time of writing this decision the parties are no longer in a relationship and therefore the Tribunal does not now find that the applicant’s support of the sponsor and her children constitutes compelling reasons for waiving the Schedule 3 criteria.

    …

    30.The Tribunal notes that the applicant has submitted evidence of the sponsor being on a Diversion Plan for criminal damage and careless driving on 7 September 2016, however, the Tribunal does not find that this is convincing evidence that the applicant has suffered family violence at the hands of the applicant and that therefore this constitutes compelling reasons for waiving the Schedule 3 criteria. There is little to suggest that these charges relate to her relationship with the sponsor.

1. It is apparent that these grounds merely seek merits review and therefore do not appear to be arguable.

   Ground 7

2. Ground 7 complains that the Tribunal was obliged to accept a doctor’s report, and if it did not do so, required to seek an alternative report, and that in any regard, the Tribunal was biased in its assessment of the evidence, alleging:

   7.        The Tribunal has acted beyond its authority and expertise.

   At paragraph 26 the Tribunal's statement is judgmental and a statement which to the ordinary person would constitute bias. In addition to this the Tribunal is in no position to question the Doctor's professional opinion as was made in his report. If the Tribunal was not satisfied with this then there is an avenue for the Tribunal to order an independent assessment. The Tribunal has no expertise in determining my mental health.

3. There is nothing before the court to indicate that the Tribunal acted with bias. It seems that this may be the applicant’s way of emphatically disagreeing with the Tribunal decision. It is not the case that the Tribunal is bound to accept a medical report, nor is it required to seek an alternative report.

4. Ground 7 does not articulate arguable grounds for judicial review.

   Ground 8

5. Grounds 8 (and in part, ground 5) alleges that the Tribunal failed to consider claims concerning family violence, claiming:

   8. The Tribunal has failed in its duty to ask the relevant and correct question as to when the family violence actually commenced.

   At paragraph 29 The Tribunal did not ask the question as to when the family violence commenced in my relationship. There is no regulatory requirement that the family violence commence at particular point in time. The regulations ask that the family violence commenced or was experienced during the relationship.

6. The Tribunal dealt with these issues in detail, as can be seen from the above quotes from the decision, and the further reasons in paragraphs [12], [19], [26], and [29] which provide:

   12.The Tribunal has concerns about the applicant’s credibility in terms of the vague and confusing claims about having suffered family violence at the hands of his sponsor, just as the applicant was attending an initial hearing with the Tribunal when the sponsor told the applicant she no longer wanted to stay with him and would not be attending the Tribunal hearing.

   …

   19.This contradiction in the applicant’s testimony about having suffered family violence is also highlighted because a statement was provided to the Tribunal just prior to the applicant attending by the sponsor in which she was fully supportive of the applicant on the basis that he was emotionally supportive of her and that if he had to go offshore, she would have difficulty looking after her children.

   …

   26.A further doctor’s report written on 27 July 2017 states that the sponsor changed her mind about marrying the applicant in May 2017 and was avoiding him. The doctor also wrote that the applicant had thoughts of self-harm and that he felt dejected and unwanted – conditions for which the doctor seems to rely on the applicant’s testimony rather than undertaking any clinical testing to make empirical findings about the applicant’s actual condition. The doctor also seems to accept the applicant’s claims of family violence without question and without critical analysis.

   …

   29.The Tribunal is not satisfied, however, that claims of family violence just at the time when the sponsor refused to cooperate to attend a hearing with the applicant constitute compelling reasons for waiving the Schedule 3 criteria, particularly when the evidence indicates that the parties were supportive of one another up until that time and the applicant had not sought medical assistance for claimed mental health issues relating to family violence until the time of review.

7. This ground also seeks merits review and does not appear to be arguable.

   Ground 10

8. Ground 10 alleges that the Tribunal failed to accord the applicant procedural fairness by failing to consider a submission, alleging:

   10. The Tribunal failed to consider a submission made by my representative on 28 July 2017.

   In a submission made to the tribunal on 28 July 2017 my representative made a stated requesting that the Tribunal wait until the final report/assessment was received from my psychologist and not to make a decision until the report was in the possession of the Tribunal. The Tribunal did not afford me natural justice when it made a decision without the outstanding report.

9. The request was made to the Tribunal on 28 July 2017 in the following terms:

   Dear Sir/Madam

   Please find attached post hearing submission and attached documents in support of the review applicant in his case.

   Please forward these to the Member.

   I thank you for your consideration in this matter.

   Yours sincerely

   George Vassiliou

   Migration Agent.

10. Attached to this submission was a letter from Clinical Psychologist Nusrat Sharmin dated 27 July 2017 setting out the following:

    Dear Mr Vassiliou,

    Thank you for your inquiry regarding a detail report of Mr [MZZXN]. I will not be able to write a detail report at this stage, until I see him regularly (weekly/fortnightly) for about 5 times. After seeing him, I need two more weeks to complete a report. Please advise Mr MZZXN to make regular appointments with me in advance and attend them regularly.

    If you need a detail report for Mr MZZXN, please put your request in writing. Please feel free to contact our office for any correspondence related to Mr MZZXN.

11. The request contained no time line within which the report would be forthcoming. In the circumstances, I see no obligation upon the Tribunal to have waited at all, however, the Tribunal generously waited for 3 months after the hearing before making a decision. No report has ever been forthcoming. The Tribunal Member specifically addressed these issues saying:

    31.A psychologist’s report was provided also on 27 July 2017 indicating that a detailed report could not be provided until he/she had seen the applicant on five occasions. At the time of writing this decision the applicant has not provided any such report, even though the Tribunal gave the applicant ample time to provide it or to at least seek an extension or inform the Tribunal about how long he needed to submit such a report about his mental well-being.

12. This ground does not appear to be arguable.

    CONCLUSION

13. In this matter the applicant has not shown that he has an arguable case for judicial review. He has however, given some explanation for failing to appear at court on the occasion that the application was dismissed by a Registrar. The application to set aside the Registrar’s order was made promptly. There is no suggestion that the application would prejudice the Minster, but the applicant’s loss of ability to seek judicial review is significant.

14. When considering the matter as a whole, I am not persuaded that the registrar’s order should be set aside under r.16.05 of the Federal Circuit Court Rules 2001.  

15. I therefore dismiss the Application in a Case filed on 16 August 2018. It is appropriate that costs follow the event at the scale fee.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:  

Dated:       30 June 2021