Ortiz v Minister for Immigration
[2014] FCCA 2994
•23 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ORTIZ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2994 |
| Catchwords: MIGRATION – Partner (temporary) (Class UK) Visa. |
| Legislation: Family Law Act 1975 (Cth), s.61C(3) Federal Circuit Court Rules 2001 (Cth), rr.13.10(a), 16.01 Federal Circuit Court of Australia Act 1999 (Cth), s.17A Migration Act 1958 (Cth), ss.353, 359(1), 414A, 474(2), 476 Migration Regulations 1994 (Cth), cl.820.221 |
| Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 NAIS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] 228 CLR 470 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZABJ v Minister for Immigration (No.2) [2007] FMCA 1062 SZAYG v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 90 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | SANTIAGO ORTIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 829 of 2012 |
| Judgment of: | Judge Howard |
| Hearing date: | 22 October 2014 |
| Date of Last Submission: | 22 October 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 23 December 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First and Second Respondents: | Mr McGlade |
| Solicitors for the First and Second Respondents: | Clayton Utz |
ORDERS
That the amended application filed on 7 November 2013 be dismissed pursuant to Rule 13.10(a) of the Federal Circuit Court Rules 2001.
That the applicant pay the first respondent’s costs on a standard basis (including any reserved costs).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 829 of 2012
| SANTIAGO ORTIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied to the Department of Immigration and Citizenship for a Partner (temporary) (Class UK) Visa on 9 November 2006.
On 30 March 2009 the Delegate decided to refuse to grant the Visa to the applicant.
The applicant sought a review of that decision and the Migration Review Tribunal, on 25 October 2010, affirmed the Delegate’s decision.
The applicant then sought judicial review of the Tribunal’s decision. On 9 June 2011 a Federal Magistrate dismissed the application for a review.
The applicant appealed to the Federal Court of Australia. On 22 December 2011 that appeal to the Federal Court of Australia was allowed and the decision of the Federal Magistrates Court of Australia was set aside. The original decision of the Migration Review Tribunal was quashed and the matter was sent back to the Tribunal for determination according to law.
At the time the applicant had applied for the Visa he was the de facto partner of Ms Heidi Andrews. Ms Andrews was an Australian citizen. Ms Andrews was the applicant’s “sponsoring spouse”.
Before the Delegate had made a decision in relation to the applicant’s Visa application – the de facto relationship between he and Ms Andrews ended. In order to succeed the applicant then had to establish – to the satisfaction of the Delegate – that he came within one of the exceptions recognised by clause 820.221 of the Migration Regulations 1994 (“the Regulations”). Those Regulations are enacted pursuant to the Migration Act 1958 (Cth).
By this stage the applicant had a child with Ms Andrews named Santina Zanzi Lee Andrews.
The applicant argued that he came within an exception which is stated in cl.820.221(3)(b)(ii) of the Regulations. That subclause states:-
…
“ (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 spouse:
(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.”
The applicant had argued that he had parental responsibility for the child pursuant to the Family Law Act 1975 (Cth) and accordingly that he had “custody” of the child and therefore came within the exception outlined in cl.820.221(3)(b)(ii) of the Regulations.
As noted earlier the Delegate rejected that argument – and the matter went all the way to the Federal Court of Australia where the appeal was allowed.
When the Tribunal was then considering the matter again (after the remittal from the Federal Court of Australia) an order of the Family Court of Australia came to light. That order was dated April 2012. That order stated that the applicant (the child’s father) and his family were only permitted to communicate with the child in a restricted way. Paragraph 4 of that order stated:-
“4. Santiago Ortiz (“the father”) and his family may communicate with the child as follows:
(a) By cards and letters addressed to the child care of the mother;
(b) The mother shall be responsible for ensuring that, having regard to the age and maturity of the child, no inappropriate written material from the father is to be given to her;
(c) The cards and letters may be sent at Christmas, Easter, Father’s Day, the father’s birthday and the child’s birthday;
(d) The mother and the father shall, within twenty one (21) days of the date of this order, provide each other with a postal address where each may communicate with the other and shall notify the other parent within fourteen (14) days of any change of postal address and residential address.”
The Tribunal again decided to reject the applicant’s Visa application. That decision was dated 23 August 2012. That decision is contained from page 5 of Exhibit 1 which is entitled, “Respondent’s Bundle of Relevant Documents” – also known as the Court Book.
The Tribunal concluded that (in essence) by reason of the order of the Family Court of Australia dated April 2012 – the applicant could no longer establish that he came within the exception outlined in cl.820.221(3)(b)(ii) of the Regulations. The applicant’s parental rights or responsibilities had been displaced pursuant to section 61C(3) of the Family Law Act 1975 (Cth).
The first respondent has submitted that the applicant has on several occasions during the course of these proceedings accepted that the Tribunal’s view was correct to this extent – the order of the Family Court of Australia dated April 2012 had the effect of preventing the applicant from coming within the exception set out in cl.820.221(3)(b)(ii) of the Regulations. This acceptance by the applicant is referred to in various documents etc. as follows:-
a)In an affidavit sworn by the applicant on 27 November 2013 (filed on 4 December 2013). In paragraph 5 of that affidavit the applicant has stated:-
“5. If the Applicant succeeds in the Appeal, as the probability of success on the conflict of interest alone is high, then the injunction would have to remain till the new trial is completed. Only if the Appellant gets the same order will the presumption of parental responsibility does not exist and the Application will fail.”
b)In the written submissions filed by the first respondent on 8 October 2014 a reference is made in footnote number 8 on page 3 to the transcript of proceedings on 29 May 2014. I have had regard to the pages of the transcript referred to therein. I do not consider there is any clear concession made in those paragraphs by the applicant.
c)On 4 December 2013 the applicant filed an application for a stay of the current proceedings pending a determination by the Full Court of the Family Court of Australia. The applicant was appealing to the Full Court in an attempt to (inter alia) have paragraph 4 of the order dated April 2012 set aside. The paragraphs in the application which are relevant are as follows:-
“Grounds of application
1. The Family Court order that the Respondents have relied upon in this proceedings is under Appeal. A success in the Family Court Appeal would result in the presumption of parental responsibility and the Application would succeed.
Particulars:
2. The Appeal is going smoothly and it is anticipated will be heard in April 2014. Hearing the Application before the conclusion of the Appeal hearing, if the appeal was unsuccessful, would result in a possible deportation which will prevent the Applicant from appearing before the Court which will thwart the powers of the Appeals Court.
3. If the Appeal is dismissed the Respondents would be correct to rely upon the order and have the Application in the Federal Circuit Court (this application) dismissed.
4. If on the other hand the current Application is dismissed and the Family Appeal is successful, the error in law in relying upon the Family Court order will continue; leading to an injunction and stay application in the Federal Court Appeal. This will result in a further MRT Review.
5. In order to avoid all the parties in these proceedings and the Court wasting precious time and moneys and stop the merry go round, the stay of the application till the Family matter is finalised would be most appropriate.
6. I seek leave of the Court for a stay of proceedings until the finalisation of the Family Court Appeal, with liberty of both parties to apply and the costs reserved.”
d)In particular the first respondent has highlighted the fact that the applicant – in paragraph 3 under the heading “Grounds of application” has conceded the point that if the Full Court of the Family Court of Australia dismissed the applicant’s appeal then the first respondent would be “correct to rely upon the (Family Court) order and have the application in the Federal Circuit Court (this application) dismissed.”
e)In the applicant’s outline of submissions dated 31 January 2014 at paragraph 20(b) it is stated:-
“If the Applicant does not appeal, the decision of the Family Court stands and the Applicant will not have the presumption of parental responsibility and deportation proceedings (if he does not depart voluntarily) are in order.”
f)Those written submissions were signed by Mr S Barataraj of counsel – on behalf of the applicant dated 31 January 2014. Those submissions were filed in the Court on 3 February 2014.
In terms of a final hearing – this matter was originally set down for 10 October 2013 in this Court. The hearing was adjourned because it became apparent that the applicant was pursuing an argument (a ground of review) that had not been particularised in his application. Further, it had not been particularised in the written submissions. It related to the Tribunal’s alleged unreasonable delay in making its decision. That ground was particularised in ground one of the amended application filed on 7 November 2013.
At that point in time the Court ordered that the hearing be adjourned to allow time for the applicant to amend his application and to raise the ground of review. The Court also ordered that the applicant pay the Minister’s costs thrown away as a result of the adjournment. The Court then allocated 10 March 2014 for the date of the final hearing.
But, as noted, on 4 December 2013 the applicant filed an interlocutory application seeking a stay of these proceedings pending the outcome of the appeal to the Full Court of the Family Court of Australia.
At the hearing of the application for the stay which took place on the 13 February 2014. In particular I note that counsel for the applicant stated for the Court at page 12 of the transcript from 13 February 2014 (from lines 15 to 17) that “it goes without saying … [that] if the [Full Court of the Family Court of Australia appeal] is not successful… then it [this proceeding has to be dismissed].”
Orders were made on 13 February 2014 as follows:-
“1.That the hearing of the Application in this proceeding on 10 March 2014 be vacated.
2. That this proceeding be stayed until 1 May 2014.
3. That this proceeding be listed for further directions on 29 May 2014.
4. That costs be reserved.”
I note paragraph 38 of the written submissions on behalf of the first respondent states:-
“38. It is submitted that, when the parties and the Court formulated the 13 February 2014 orders, it was done on the clear understanding that, if the applicant’s Family Court Appeal was dismissed, when the matter returned for directions on 29 May 2014 the proceeding would be dismissed.”
In my view it does not matter whether there was an “understanding” one way or another. On 6 March 2014 the Full Court of the Family Court of Australia dismissed the applicant’s appeal.
When the matter came back to the Court on 29 May 2014 the applicant suggested to the Court that he was in the process of making an application to seek special leave to appeal to the High Court of Australia. That is, an application for special leave in relation to the decision of the Full Court of the Family Court of Australia.
At the hearing on 29 May 2014 the Court was concerned that the applicant did not have the benefit of an interpreter. The matter was adjourned so that an interpreter could be obtained to enable the application to obtain legal and migration advice. The matter was therefore adjourned for a final hearing to take place on 22 October 2014.
The Minister seeks an order that the amended application filed by the applicant in this proceeding on 7 November 2013 be dismissed.
It seems to be that the applicant’s application must be dismissed. The order of the Family Court of Australia made in April 2012 is still operative. That necessarily means that the applicant does not come within the exception contained in cl.820.221(3)(b)(ii) of the Regulations.
In the event that my view in that regard is not correct it is necessary for the Court to also consider the merits of the substantive application.
Having regard to the concessions made by the applicant and his counsel (as outlined above) and noting that the Full Court of the Family Court of Australia dismissed the applicant’s appeal and noting further that the application did not seek special leave to appeal to the High Court of Australia leads me to conclude that the applicant has reached the end of the road in relation to this application. The applicant and his counsel were right to concede that this application would have to be dismissed in the event that the applicant’s appeal to the Full Court of the Family Court of Australia was unsuccessful. His appeal to that Court was, indeed, unsuccessful. That means that paragraph 4 of the order made by the Family Court of Australia in April 2012 still stands. Therefore the applicant does not come within one of the exceptions recognised by cl.820.221 of Schedule 2 of the Migration Regulations 1994 (Cth). The application must be dismissed.
The dismissal of the application is permittable pursuant to rule 13.10(a) of Federal Circuit Court Rules 2001. That rule states:-
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.”
I am satisfied that the applicant in this case has no reasonable prospect of reasonably prosecuting this proceeding. For that reason the matter should be dismissed.
Further, I note the Court’s power contained in r.16.01 of the Federal Circuit Rules 2001 where it is stated:-
“The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.”
The matter can also be dismissed pursuant to s.17A of the Federal Circuit of Australia Act 1999.
If I am wrong in relation to the dismissal of the application as outlined above in these Reasons for Judgment – then, I have reached the conclusion that even having regard to the substantive application and the merits of the substantive application – that the application should be dismissed. The reasons that I have come to that conclusion are as follows.
In essence, it is incumbent upon an application in cases such as the present to show to the Court that the decision made by the Tribunal was flawed through jurisdictional error – note s.474(2) and s.476 of the Migration Act (supra). Also note the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at paragraph 87.
In the Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 the High Court referred to a passage in an earlier High Court decision entitled Craig v South Australia (1995) 184 CLR 163 – where the concept of jurisdictional error by a Tribunal was explained:-
“When a Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.”
In a decision of the Federal Court of Australia (a decision of Allsop J – as His Honour then was) entitled SZAYG v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 90 His Honour specifically stated the role of the Federal Circuit Court of Australia when revealing a decision of the Tribunal. His Honour stated:-
“The Migration Act and the Judiciary Act provide for judicial review of the Tribunal's decision. That judicial review is the application that was brought to the Federal Magistrates Court. It is important to understand that that application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error. That is a legal term of some complexity. However, at the risk of over-simplification, it basically means that the Court's job is to ascertain whether the Tribunal in doing its task, obeyed the legal framework within which it is supposed to work. For instance, it must approach the matter in a fair and unbiased way; it must assess the applicant's claims by reference to the appropriate principles in the Act; it must ask itself the correct questions as to its task; and it must proceed giving the applicant procedural fairness, by, for instance, giving the applicant a hearing before it makes a decision. Also, it must deal with the matter before it in a way that cannot be described as irrational or capricious. Within that kind of framework, how the Tribunal assesses the facts is largely a matter for the Tribunal. It is simply not the job of the Federal Magistrates Court and it is not this Court's job under the relevant statutes to re-find the factual matters afresh. It is important to understand that difference in function between the Tribunal and the Courts.”
In the present the case the applicant filed an amended application on 7 November 2013. The first ground of review was stated as follows:
“1. The Tribunal Member breached fair procedure rules by unreasonably delaying in making a decision.
Particulars:
a. The Judgment of Logan J was made on 22 December 2011. Taking into consideration that the Tribunal made an Application for leave to file an Appeal and then discontinuing in January 18 2012 the Tribunal had delayed as much as 6 months before making a decision.
b. The Tribunal was able to make a decision based upon the existing facts and information before it and insisted on the Applicant to provide further information to assist it to make a decision, without specifying what information the Tribunal wanted from the Applicant.
c. The Applicant has already informed the Tribunal by telephone conversations that in view of the fact that the matter of the paternity of the child is no longer a question, and the matter in the Family Court has not been decided and there was no indication when the judgment would come through, the presumption of parental responsibility under the Family Law Act 1975 exists and therefore the Applicant was eligible for the visa.
d. The Applicant has on numerous telephone conversations with the Tribunal appealed for a quick decision on the basis that he does not want this uncertainty to affect his appeal processes and protested against the undue delay the Tribunal was taking in making a decision.”
The only occasions that delay has been held to amount to jurisdictional error have involved extreme cases of delay – for instance 4.5 years. Note the decision of the High Court in NAIS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] 228 CLR 470. Indeed in that case the Tribunal (the Refugee Review Tribunal) had conducted two hearings. The first hearing was held 4.5 years before the decision was made. The second hearing (which was a less significant hearing) took place about one year before the date the decision of the Tribunal was made. The High Court came to the conclusion that such an extreme delay meant that the Tribunal could not safely make creditability assessments. Note NAIS (supra) at paragraph 172.
Section 353 of the Migration Act (supra) states:-
“353 Tribunal’s way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
However the High Court pointed out in the NAIS (supra) at paragraph 163 that:-
“A failure to make a quick decision would not, in the context of the Act overall, of itself constitute jurisdictional error” (per Callaghan and Haydon JJ).”
Further, French CJ pointed out in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (from paragraph 11 to paragraph 16) that the requirement in s.353(1) is facultative (and not exhaustive). Any alleged failure by the Tribunal to comply with s.353 of the Migration Act (supra) therefore cannot give rise to jurisdictional error. Per French CJ in Li (supra) and per Gleeson CJ in NAIS (supra) at paragraph 5.
I have had close regard to the chronology of events following the decision of Logan J when the matter was remitted back to the Tribunal in December 2011. I note the chronology is contained in paragraph 73 of the outline of submissions of the first respondent filed on 8 October 2014. A close examination of the chronology leads me to conclude that the Tribunal did act in a timely manner – having regard to the particular circumstances of this case.
In relation to the particulars noted under ground one in the amended application of the applicant – none of the matters raised there changed my view in relation to ground one. In my view – there was no unreasonable delay in making a decision in this case. The decision was made on 23 August 2012 and – when one has regard to the chronology contained in paragraph 73 of the first respondent’s Outline of Submissions (which has not been contested) – the delay was not unreasonable.
Ground two stated in the applicant’s amended application filed 7 November 2013 states:-
“2. The Tribunal Member erred in law in taking into consideration the judgment of the Family Court knowing that it is under appeal.
Particulars
a. The Family Court Judgment came out in April 2013 more than 2 months from the date of the acceptance of the judgment of Federal Court by Logan J by the Tribunal.
b. The Applicant replied to the Tribunal when asked that the judgment of the Family Court had been unfavourable to the Applicant in that he has no parental responsibility, the Applicant indicated that the judgment is now under appeal and there should not be consider in making the decision.”
I have come to the conclusion that the applicant is simply wrong in relation to this ground of review. The Tribunal had before it an order of the Family Court of Australia. The Tribunal had to have regard to that order – even though the applicant had appealed the order. The order was highly relevant having regard to cl.820.221(3)(b)(ii) of the Regulations.
Of course, the order of the Family Court of Australia was binding until some further order by a Court of competent jurisdiction varying that order.
The applicant must fail on ground two.
In relation to ground three for review contained in the amended application filed 7 November 2013 states as follows:-
“3. The Tribunal erred in law in delaying making the decision by asking the Applicant for more particulars and information to assist the Tribunal when the Tribunal knew or ought to have known that it has sufficient information before it to make a decision and failed to do so.
Particulars:
a. The only criterion that prevented the Applicant from being eligible to obtain the resident visa at the first application was the issue of his paternity of the child Santina. Once the issue had been resolved by the Court order, the Tribunal was bound to make a decision based upon the information already before it, a decision that would have been favourable to the Applicant. By not making the decision at that time the Tribunal has caused injustice to the Applicant.”
In so far as this ground relates to a contention by the applicant that the Tribunal unreasonably delayed the making of the decision following the decision of Logan J – I have already come to the conclusion that there was no unreasonable delay and my Reasons for Judgment in that regard have already been included above.
I agree with the submissions made by the first respondent in the outline of submissions filed 8 October 2014 in relation to ground three.
For the reasons stated above ground three should be dismissed.
Ground four of the amended application filed on 7 November 2013 states:-
“4. The Tribunal is duty bound to make a favourable decision if the information before it was sufficient to make the decision. It appears that the Tribunal had unduly delayed and pre-empting a negative decision of the Family Court.”
The date of the Tribunal’s decision was 23 August 2012. As at that date the Family Court order of April 2012 was operative. By reason of the operation of the said Family Court order the applicant did not fall within the exception contained in cl.820.211(3)(b)(ii) of the Regulations. Therefore, at the time of the making of the decision (23 August 2012) the Tribunal was not “duty bound to make a favourable decision”. That contention by the applicant is clearly wrong. I note s.359(1) of the Migration Act (supra). That section states:-
“359. Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”
As at the time of the making of the relevant decision – the Tribunal could not ignore the order of the Family Court of Australia. It was clearly relevant.
The fourth ground of review is dismissed for the reasons stated.
The fifth ground of review states as follows:-
“5. The Tribunal failed to take into consideration of unintended consequences of making the unfavourable decision against the Applicant based upon a judgment that may result in favour to the Applicant and thereby retain the parental responsibility. The Tribunal has in making the decision thwarted the power of the Family Court and the right of the Applicant in continuing the appeal process.
Particulars:
a. The Tribunal is aware or ought to be aware that the appeal process in the Full Court of the Family Court is normally a long process, requiring the Applicant to remain in Australia to continue the appeal process. Even if this appeal were unlikely dismissed the Applicant would still have the right to proceed to its final process of making the appeal in the High Court. By making the adverse decision the Applicant’s right to remain in Australia has been unjustifiably removed, as he will face deportation proceedings and be deported to Spain.”
When a Tribunal is considering a Visa application – the potential consequences for an applicant – such as deportation proceedings – is not a matter which is relevant to the criteria which a Tribunal must consider.
Ground five for review must be rejected.
The sixth ground of review contained in the amended application for judicial review filed 7 November 2013 states:-
“6. The Tribunal has pre-empted the decision of the Family Court of Appeal that it would fail without a reasonable cause. The applicant maintains that the judgment of His Honour Benjamin J in not providing access or contact with his children (at least supervised) for the whole of the children’s minor life, was too harsh, even if all the allegations against the Applicant were true, and the Applicant is confident that his chances of success in the Appeal are significantly high. This is further supported in that there is evidence that the solicitor for the ICL failed to disclose to the Court or seek the consent of the opposing parties to continue to represent the children knowing that she had provided advice to the Applicant in a related matter before.”
At the time of the making of the decision (23 August 2012) the Tribunal had before it an order of the Family Court of Australia dated April 2012. The effect of that order meant that the applicant did not come within the exception contained in cl.820.221(3)(b)(ii) in the Regulations. The fact that the applicant had appealed the original Family Court order is not relevant. The April 2012 Family Court order was operative as at the date of the decision of the Tribunal in August 2012.
Further, and in any event, it has been stated in decisions such as Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 (at paragraph 46) and in SZABJ v Minister for Immigration (No.2) [2007] FMCA 1062 at paragraph 30 – that a change of circumstances after the making of a decision by the Tribunal does not in itself “constitute a ground to impugn the decision of the Tribunal”.
It is important to the note that pursuant to s.414A of the Migration Act (supra) the material Visa criteria must be satisfied as at the date of the Tribunal’s decision. The Tribunal was obligated to take into account the existing circumstances as at 23 August 2012.
The purported merits (or otherwise) of the appeal by the applicant to the Full Court of the Family Court of Australia were not relevant to the Tribunal’s decision. Further, and in any event, the merits (or otherwise) of that appeal were not brought to the Tribunal’s attention. It is worth noting that even if the applicant had thought that he had good prospects of success on his appeal to the Full Court of the Family Court of Australia – he was clearly wrong because the appeal was dismissed by the Family Court of Australia in 6 March 2014.
Ground six in the application for judicial review must be dismissed.
For the reasons stated above all of the grounds for review contained in the amended application for judicial review filed 7 November 2013 must be dismissed.
In my view, this Court is not obligated to take into account matters, submissions or grounds not raised in the amended application for review. The applicant has included some further submissions and matters in his written outline of submissions which he filed on 1 October 2014.
If I am incorrect in my view in relation to that issue then – it should be noted that I have come to the conclusion that the applicant has not (in his written submissions) raised any proper argument to establish that the decision of the Tribunal gave rise to jurisdictional error. I agree with the written outline of submissions provided on behalf of the first respondent filed on 8 October 2014 and in particular with those submissions contained from paragraph 135 through to 143.
Conclusion
I note that in a decision of the High Court entitled SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 the High Court referred at paragraphs [28] and [29] to situations where “no useful result could ensue from the grant of the relief desired by the appellants”. In such cases – the Court could exercise its discretion to refuse the relief sought. The matter presently before the Court is such a case.
Therefore, even if I am wrong in relation to any of the grounds of review included in the amended application for review filed 7 November 2013 – and indeed one of the grounds shows (which I do not accept) jurisdictional error on the part of the Tribunal – I have come to the conclusion that it would be futile to remit the matter for decision because the applicant simply cannot succeed before the Tribunal in relation to this particular Visa application which this Court is now considering. This applicant is no longer in a relationship with the mother of the child. This applicant does not come within one of the exceptions recognised by cl.820.221(3)(b)(ii) – by reason of the order of the Family Court of Australia dated April 2012.
The application for a Visa where Ms Andrews was the sponsoring spouse is bound to fail. Any remittal would be futile.
In my view the applicant has not been able to establish any jurisdictional error. The relevant decision by the Tribunal is a privative clause decision under s.474(2) of the Migration Act and is not reviewable under s.476 of the said Act.
The application should be dismissed.
The applicant should be ordered to pay the first respondent’s costs on a standard basis (including any reserved costs).
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 23 December 2014