Neagoe v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 674

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

Neagoe v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 674

File number(s):

MLG 1715 of 2018

Judgment of:

JUDGE MANSINI

Date of judgment:

18 August 2022

Catchwords:

MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision not to grant a Partner (Temporary) (Class UK) visa – where application lodged 206 days outside the statutory timeframe – whether the extension of time ought to be granted – whether grounds available to the applicant are reasonably arguable - application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss. 60I, 61C

Migration Act 1958 (Cth) ss. 57, 65, 116, 375AA, 359AA, 476A(3)(a), 477(2)

Migration Regulations 1994 (Cth) Sch 2 cls.820.211, 820.221

Cases cited:

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

1           CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57

2           Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] 185 CLR 259

MZABP v Minister for Immigration and Border Protection [2015] 242 FCR 585

Re Commonwealth of Australia; Ex Parte Marks [2000] 177 ALR 491

SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86

Tran v Minister for Immigration & Border Protection [2014] FCA 533

WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075

WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726

Division:

Division 2 General Federal Law

Number of paragraphs:

68

Date of hearing:

4 August 2022

Place:

Melbourne

Applicant

The Applicant appeared in person

Counsel for the First Respondent

Mr J Barrington

Solicitor for the First Respondent

Mills Oakley

ORDERS

MLG 1715 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MARIUS CATALIN NEAGOE Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	18 AUGUST 2022

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The Applicant pay the costs of the First Respondent fixed in the sum of $3,930.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE MANSINI

IN SUMMARY

1. Before the Court is an application seeking an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Act) in which judicial review is sought of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) (partner visa), pursuant to s.65 of the Act.

2. The application was filed 206 days outside the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed. The reasons for this decision follow.

   The relevant facts

3. The Applicant is a citizen of Romania. He arrived in Australia on 13 May 2016 on an E-Visitor (Subclass 651) Visa.

4. On 31 October 2016, the Applicant applied for the partner visa together with a Partner (Residence) (class BS) (subclass 801) visa, on the basis of a de facto relationship with an Australian citizen (his then partner, now Former Partner). The Applicant and Former Partner are the biological parents of a child, born on 19 July 2016 (Applicant’s Child).

5. On 2 November 2016, the Applicant was granted a Class WA (Subclass 010) Bridging Visa.

6. On 20 April 2017, the Applicant was charged with various offences of which the Former Partner was subject including threats to kill, common assault, contravention of a family violence intervention order, contravention of an order intending to cause harm or fear for safety, destroying or damaging property, false imprisonment, committing an indictable offence whilst on bail, contravening a conduct condition and persistent contravention of notices and orders under the family violence legislation.

7. On 21 April 2017, the Former Partner made a statement to the Department of Immigration and Border Protection (the department), expressing her wish to withdraw her sponsorship of the Applicant’s visa application on the basis of ongoing domestic violence.

8. On 28 April 2017, in accordance with s.57 of the Act, the department wrote to the Applicant inviting him to comment on the information it had received which indicated his relationship with the Former Partner had ceased. On 26 May 2017, the Applicant responded to the department with a short description of the relationship, said that he had organised mediation to find a solution for their issue and attached a copy of a birth certificate which confirmed the Applicant and Former Partner as parents of the Applicant’s Child.

9. On 16 May 2017, an Intervention Order was made against the Applicant (expired on 15 May 2018). It named the Former Partner, the Applicant’s Child and an additional child of the Former Partner as persons protected by the Intervention Order.

10. On 30 May 2017, the Applicant was notified that a delegate of the First Respondent refused his partner visa application.

11. On 13 June 2017, the Applicant applied to the Tribunal for review of the delegate’s decision to refuse his partner visa application. The application included a letter dated 8 June 2017 which confirmed an appointment on 13 June 2017 with a family dispute resolution practitioner. By email to the department of 16 June 2017, the Former Partner expressed her objection to the Applicant’s appeal of the delegate’s decision.

12. By email correspondence of 20 June 2017, the Tribunal invited the Applicant to provide any material or written arguments for its consideration. That same day, the Applicant replied to the Tribunal with a copy of the Decision Record from the department and attached no other materials, submissions or evidence.

13. On 19 July 2017, the Applicant’s Class WA (Subclass 010) Bridging Visa was cancelled pursuant to s.116 of the Act and the Applicant was detained pending the outcome of another bridging visa application (subsequently refused, on 17 May 2018).

14. On 12 September 2017, the Tribunal invited the Applicant to attend a hearing. That correspondence included an information sheet ‘Information about hearings – MR Division’ which the Applicant completed and returned on 15 September 2017. On 19 September 2017, the Applicant provided the Tribunal with: a response to hearing invitation, a letter from FMC Mediation and Counselling Victoria (dated 5 October 2017) which confirmed the Applicant had attended 4 sessions from 18 January 2017 to 23 February 2017, a copy of the Intervention Order (dated 16 May 2017), a letter from the Family Relationship Centre enclosing a Family Dispute Resolution certificate under s.60I of the Family Law Act 1975 (Cth) (Family Law Act), and a letter from Anglicare Victoria Family Violence Program (dated 6 February 2017) confirming that the Applicant participated in 20 sessions of the Men’s Behaviour Change Program at Anglicare.

15. On 20 October 2017, the Tribunal convened a hearing which the Applicant attended but the Former Partner did not attend. The Tribunal gave an oral decision in which it affirmed the decision of the delegate to refuse the Applicant’s partner visa application – in summary because, at the time of its decision, the Tribunal was not satisfied that the parties were in a spousal relationship or that any of the alternative criteria in cl.820.211 or cl.820.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) were met. Also on 20 October 2017, by email correspondence, the Tribunal provided notification of Oral Decision (Outcome of Review), including a written record of the outcome of its review, a fact sheet containing guidance material titled ‘Information about decisions – MR Division’, a recording of the hearing and a transcript of that part of the hearing in which the oral decision was delivered.

16. On 12 June 2018, the Applicant consulted an immigration law firm to seek advice in relation to his visa status and options for judicial review. On 14 June 2018, the firm received instructions to proceed with an appeal.

17. At 6.19pm on 15 June 2018, the immigration law firm on behalf of the Applicant electronically lodged an application for judicial review together with an affidavit of a Dushan Nikolic, Solicitor representing the Applicant (sworn 15 June 2018).

18. On 22 June 2018, a response was filed on behalf of the First Respondent contending the decision of the Tribunal was not affected by jurisdictional error.

19. Procedural orders were made on 21 August 2018, the matter was set down for final hearing, a court book was filed and the parties filed and served written submissions.

20. On 10 January 2022, the Court’s Registry advised the parties that this matter would be listed for an extension of time hearing only on a date to be fixed.

21. On 5 May 2022, the parties were notified that this matter was listed for final hearing before the Court as presently constituted.

22. On 21 July 2022, the First Respondent filed written submissions. The Applicant did not file an amended application, any supplementary court book or any written submissions - either as directed or at all.

23. At the hearing on 4 August 2022, the Applicant was in-person. As no submissions or other materials were filed on behalf of the Applicant since the originating application and accompanying affidavit, he was allowed to give evidence in support of his application for an extension of time (which counsel for the First Respondent did not oppose). At the hearing, the Applicant was offered the assistance of a Romanian interpreter which he declined to rely on for the most part and was otherwise assessed as delivering his submissions and evidence competently. It was also confirmed that the Applicant was in possession of the court books and other relevant documents, and that he had received the First Respondent’s written submissions (which he was granted an adjournment to consider in detail with the assistance of the interpreter).   

24. The Applicant remained in immigration detention at the time of the hearing and delivery of this judgment.

    APPLICATION FOR AN EXTENSION OF TIME

    Was the application filed late?

25. Under s.477(1) of the Act, any application to this Court is to be filed within 35 days of the date of the Tribunal’s decision.

26. The Tribunal’s decision was delivered orally on 20 October 2017. An application for judicial review in this Court was due to be filed by 24 November 2017. Not being lodged electronically until 6.19pm on 15 June 2018, this application was not taken to have been filed in accordance with the Court’s Rules until 18 June 2018: CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57 at [51]-[52].

27. Accordingly, the application was made 206 days after the expiry of the statutory timeframe.

    Should the Court be satisfied to make an order extending time?

28. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if satisfied that it is necessary in the interests of the administration of justice to make the order.

29. The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.   

30. The principles regarding an application under s.477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15). The provision requires the Court “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15, at [40] per Jagot and Halley JJ. Whilst the matters to which regard may be had are not expressly confined by the Act, and the guidance afforded by the authorities is not an exhaustive list, matters that are usually relevant include the following:

    (a)the extent of the delay and the explanation for it;

    (b)any prejudice to the respondent that would be occasioned by a grant of the extension;

    (c)the impact on the applicant if the time is not extended;

    (d)the interests of the public at large; and

    (e)the merits of the substantive application.

    (BTI15, at [25]-[26] per Logan J).

31. By the application filed on 18 June 2018, the Applicant has made an application to the Court, in writing, specifying 6 grounds as to why he considers it necessary in the interests of the administration of justice to make the order for an extension of time, as follows:

    1.The application has reasonable prospects of success.

    2.The Applicant is currently detained at the Melbourne Immigration Transit Accommodation (MITA) and at the time of the decision was detained at the Maribyrnong Immigration Detention Centre. The Applicant has been held in immigration detention continuously since the date of the decision.

    3.Carina Ford Immigration Lawyers was contacted on 12 June 2018 and agreed to provide urgent legal assistance on 14 June 2018.

    4.The impact on the Applicant if time is not extended is severe. The Applicant has been detained in immigration detention since July 2017, which is an extended period of time and has been unable to obtain legal assistance as a result of his detention. This application related to his ability to remain in Australia, where he has an Australian citizen child.

    5.There is no identifiable prejudice to the Respondent in grating an extension of time.

    6.The reasons for the Applicant’s delay are reasonable and due in large to his ongoing detention.

32. I turn now to consider these grounds.

    Delay and explanation

33. In this case the period of the delay was 206 days. 

34. By the grounds of the application for an extension of time and the oral submissions of the Applicant at the hearing before the Court, the Applicant sought to explain his delay in filing this application as reasonable and due in large part to his detention. More specifically:

    (a)The Applicant was in detention for the duration of the delay, ie. from and including the date of the Tribunal’s decision until the date of filing;

    (b)The Applicant was unable to obtain legal assistance as a result of his detention, because he had no money to engage, and therefore could not access, a lawyer until he did so in June 2018 with the support of the Former Partner; and

    (c)The immigration law firm was first contacted by the Applicant on 12 June 2018 and the firm agreed to provide urgent assistance on 14 June 2018.

35. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: see, WZASQ v MIBP [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].

36. Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran, at [38].

37. It is not contentious that the Applicant was in immigration detention for the duration of the delay. I accept that this circumstance presented difficulties for the Applicant in communicating with persons and organisations outside of the detention centre and in independently funding his own legal advice. However, on the materials before the Court, whilst in detention the Applicant was able to and did in fact correspond by email with the Tribunal (in which proceedings he represented himself) and also corresponded with a lawyer. On the Applicant’s own case, after the Tribunal’s decision, he did not attempt to contact a lawyer until 12 June 2018. He did so with the assistance of the Former Partner, who at that time supported him and had engaged a lawyer on his behalf. Further, the Tribunal had emailed the Applicant guidance material “Information about decisions – MR Division” with the notification of Oral Decision (Outcome of Review) on 20 October 2017 which explained the process for judicial review and that strict time limitations applied. The Applicant did not contend to have attempted to access pro-bono legal advice or to have considered self-representation. That the Applicant did not attempt to file this application at an earlier time is a matter for him but, in my view, the Applicant has not satisfactorily explained the lengthy delay in this case.

38. The unfortunate circumstance of the Applicant’s separation from his young child whilst in detention may also be accepted however does not explain the lengthy delay. At the time of the Tribunal’s decision until 15 May 2018 the Applicant was, by the terms of the Intervention Order, prevented from accessing his child unless he were able to negotiate child arrangements by letter, email or text message consistent with the terms of that Intervention Order. Further or in any event, this factor might have prompted the Applicant to act with some urgency to seek judicial review after learning of the Tribunal’s decision.

39. Considered individually or together, I am not persuaded there is a reasonable explanation for the delay. The length and explanation for the delay weigh strongly against an extension of time in this matter.

    Prejudice to the respondent

40. The First Respondent properly did not contend it would suffer any particular prejudice if the Applicant were granted an order allowing an extension of time.

41. However, the mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].

42. I assess this as a neutral consideration.

    Public interest and impact on the Applicant

43. There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].

44. As to the impact upon the Applicant, if the extension of time is refused then the Tribunal’s decision will stand and he would not be afforded a review of the Tribunal’s decision to refuse his partner visa. Although an alternative route of review might be available, the refusal of an application for an extension of time forecloses any right of appeal: Act, s.476A(3)(a); see also MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [65].

45. Naturally the Applicant views the Tribunal’s decision as preventing him from remaining in Australia with his child. I accept the consequential impact on the Applicant as of significance. However, in this regard, it may be observed that the original visa application was for a partner visa and there may be other alternatives by which he can have a relationship with his child (in- or outside of Australia) following return to his country of nationality. And, as the First Respondent pointed out, the nature of the application and degree of impact in this case is distinct from that of an applicant for a protection visa with fears for their own safety.

    Merits of proposed grounds

1. The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.

2. The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the Applicant are reasonably arguable.

3. The three grounds of the substantive application are as follows:

   Ground 1:

   The second respondent committed jurisdictional error by demonstrating apprehended bias.

   Ground 2:

   The second respondent committed jurisdictional error by failing to accord procedural fairness to the applicant.

   Ground 3:

   The second respondent committed jurisdictional error by failing to consider oral evidence given at the tribunal hearing relevant to whether the Applicant cl.820.221(3)(b)(ii) of the Regulations.

4. Each ground included particulars. In the affidavit of the Applicant’s then-lawyer, submitted with the application, it was stated at [13] with no further explanation that:

   The grounds for the Application, set out in the draft Original Application, have considerable merit.

5. I am not persuaded that the grounds of the substantive application are reasonably arguable for the following reasons.

6. By ground 3, the Applicant contended that the Second Respondent fell into jurisdictional error as it failed to consider the Applicant’s oral evidence given at the Tribunal hearing. In particular, regarding preliminary steps he had taken to obtain a s.60I certificate being necessary before commencing custody proceeding in the family court; and as to the effect of s.61C of the Family Law Act. At the Tribunal hearing, the Tribunal Member asked the Applicant whether he had been granted a document that said he had custody or access to either of the children and whether he had an agreement or the family court had issued a document as to payment of maintenance. The Applicant gave oral evidence to the Tribunal that custody arrangements for the Applicant’s Child were yet to be finalised – specifically, that he had not yet applied to the family court but that he had completed Family Dispute Resolution and had been issued a certificate under s.60I of the Family Law Act which he was required to do before he could initiate family law proceedings for parenting orders. Before this Court, the Applicant also referred to the terms of the Intervention Order which included a notation that the parties may negotiate child arrangements by letter, email or text message. There was also a reference to a visit by the Former Partner and the Applicant’s Child whilst he was in immigration detention.

7. Clause 820.221(3) of Schedule 2 to the Regulations at the relevant time provided:

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

   (a)the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (b)       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.

8. On the materials before the Court, there is no reasonable basis to argue a failure to consider the Applicant’s oral evidence or a jurisdictional error in the application of the relevant criteria at cl.820.221(3)(b) of the Regulations.

9. It is a necessary pre-requisite to obtain a Family Dispute Resolution Certificate before commencing proceedings for parenting orders in the Court: s.60I of the Family Law Act. It is not controversial that, at the time of the Tribunal’s decision, the Applicant had obtained a s.60I certificate but had not commenced proceedings under the Family Law Act and was not party to any interim or final parenting orders or maintenance orders in that jurisdiction (or any other formal maintenance agreement or obligation). The Tribunal could not reasonably be said to have made an error in its assessment of the cl.820.221(3)(b) criteria as it could not know the outcome of a proceeding that had not been initiated in the Family Court at the relevant time.

10. Further, the reference to s.61C was misplaced in this context. Under the Family Law Act, there is an assumption that each parent of a child under 18 years of age ordinarily has “parental responsibility” of the child regardless of whether they are married, in a de facto relationship or separated: s.61C of the Family Law Act. “Parental responsibility” is defined for the purposes of that division of the Family Law Act, at s.61B, to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children. For example, to make medical decisions or decisions about schooling. The general presumption of parental responsibility in the Family Law Act is distinct from the separate matters of custody and access to a child which the Tribunal was bound to consider in assessing the criteria at cl.820.221(3)(b) of the Regulations.

11. Unfortunately, at the time of the Tribunal’s decision, the Former Partner no longer supported the Applicant in his application and a final Intervention Order was in place which named the Former Partner and the Applicant’s Child as protected persons in relation to whom the Applicant was prevented from: approaching and remaining within 5 metres of; and from contacting or communicating with, for some months after the Tribunal’s decision – until May 2018. That the Intervention Order contemplated some other agreement could possibly have been reached regarding “child arrangements”, or even if the Former Partner had visited since the Intervention Order, were not to the point. The Intervention Order operated to protect the Applicant’s Child by, among other things, preventing access by and communication with the Applicant. As the Applicant’s relationship with the Former Partner had ceased, and in the absence of identification of any evidence before the Tribunal to support a limb of cl.820.221(3)(b), there is no reasonably arguable error by the Tribunal.

12. As I understood the Applicant’s contention at the hearing, he also wanted to challenge the Tribunal’s decision at the time of filing this application for review in June 2018 because by that time he had the support of his Former Partner. I accept his evidence to the Court that the Applicant and his Former Partner had, in or around June 2018, “tried to make it work again” and the Former Partner had agreed to assist the Applicant by engaging a lawyer for him. But he also gave evidence that, at the time of the Tribunal’s decision, he was not in a relationship with the Former Partner. By bringing this application, the Applicant really wanted to introduce new evidence for consideration that was not before the Tribunal. That is beyond the scope of the Court’s powers on judicial review even if the application were made within the statutory timeframe: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

13. By ground 2, the Applicant contended that the Tribunal failed to afford him procedural fairness by failing to provide an opportunity to review a s.375AA certificate given to it by the First Respondent, to make an assessment of the validity of the certificate. During the proceedings, the Tribunal disclosed the existence of the certificate, summarised it and disclosed the nature of the documents covered by the certificate. The Applicant was given an opportunity to comment on and to make submissions challenging the validity of the s.375AA certificate. The Applicant’s explanation was accepted and the Tribunal treated the information covered by the s.375AA certificate as irrelevant to its determination.

14. By the remaining ground 1, the Applicant contended that he was denied a fair hearing because he subsequently claimed to apprehend bias on the part of the Tribunal member who decided his claim. A demonstration of apprehended bias must meet a high bar assessed by reference to the “fair-minded lay observer”: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. At the hearing before this Court, the Applicant conceded that this claim was at the initiative of his former representative and he could not shed any light on it.

15. Turning then to the particulars to this ground 1. The Tribunal made some preliminary remarks including to indicate that a decision may be delivered that same day. Those remarks may objectively be understood by a reasonable bystander as providing a “roadmap” or guidance to the Applicant as to what he might expect from the process. The statement made in opening remarks does not reflect pre-judgment.

16. It was a requirement under ss.359A and 359AA of the Act for the Tribunal to invite the Applicant to comment on information it obtained which might be the reason or part of the reason for affirming the decision under review. The Tribunal ultimately did so before proceeding to make a final decision. That the Tribunal did this does not indicate any absence of procedural fairness.

17. As outlined in relation to ground 3, the Tribunal Member asked questions of the Applicant, who in turn gave oral evidence about, the custody arrangements and any maintenance agreements. The Tribunal was not requested nor obliged to delay its decision to enable the Applicant to commence family law proceedings.

18. The Tribunal’s acknowledgement of the Applicant’s circumstance in detention was reflective of an understanding of the need for an efficient outcome – indeed the Applicant, understandably, takes that position now before this Court. The brief duration of the hearing is reflective of the limited materials and evidence before the Tribunal.

19. I would not be satisfied that the matters raised by the Applicant would indicate to a “fair-minded lay observer”, who was properly informed, that the Tribunal may not bring an impartial mind to the matter. To the contrary, the records and recording reflect that the Tribunal was open to considering the case with appropriate empathy for the Applicant’s position.

20. As I explained at the hearing, this Court does not have the power to simply redetermine the Tribunal’s factual findings nor its conclusion as to whether the Applicant is entitled to a visa. What this Court can do is examine the procedure and decision of the Tribunal with a view towards determining whether it was affected by any material legal error.

21. No reasonably arguable jurisdictional error was identified by the Applicant at hearing. Nor is any such error apparent on my own review of the materials. Even at an impressionistic level, the particularised complaints do not reveal reasonable prospects of success.

    CONCLUSION

22. The application in this case being 206 days outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.

23. Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application will be dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       18 August 2022