Sarkis v Minister for Immigration and Anor (No.2)

[2019] FCCA 3174

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARKIS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 3174

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision made by the Administrative Appeals Tribunal – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B, 362C, 379A(5)(b), 379G(1), 476, 477(1), 477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: YOUSSEF YOUNESS SARKIS

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 922 of 2017

Judgment of: Judge Manousaridis

Hearing date: 4 November 2019

Date of Last Submission: 4 November 2019

Delivered at: Sydney

Delivered on: 12 November 2019

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms E Warner Knight of Australian Government Solicitor

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act in relation to the decisions made by the Administrative Appeals Tribunal on 22 December 2016 and on 1 February 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 922 of 2017

YOUSSEF YOUNESS SARKIS

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) extending the 35 day period provided for by s.477(1) of the Act for applying for a remedy under s.476 of the Act in relation to two decisions of the second respondent (Tribunal), one made on 22 December 2016, and the other made on 1 February 2017. By the first decision the Tribunal, purportedly pursuant to s.362B(1A)(b) of the Act, dismissed an application for review of a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa (801 visa) decision. By the second decision the Tribunal, purportedly pursuant to s.362B(1C)(b) of the Act, confirmed its decision of 22 December 2016.

Background

1. The applicant is a citizen of Lebanon. He first entered Australia on 20 February 1995 as the holder of a tourist visa. On 22 February 1996 the applicant applied for a protection visa which was refused on 21 October 1996.[1] On 9 December 2008 the applicant applied for a child visa, but, on 15 March 2010, this application, too, was refused.

   [1] This section represents my findings of fact. The findings are based on the documents that comprise the bundle of relevant documents which, in the circumstances I set out later in these reasons, I admitted into evidence.

2. On 29 April 2011 the applicant lodged an application for an 801 visa and also for a Partner (Temporary) (Class UK) (Subclass 820) visa (820 visa). That application was based on the applicant being in a spousal relationship with Ms B. On 3 March 2015 a delegate of the Minister refused to grant the applicant a 801 visa because the applicant failed to satisfy criterion 3001, which required that the application for the 801 visa be made within 28 days after the day on which the applicant ceased to hold a substantive visa, and there were no compelling reasons for not applying that criterion. There is no question that the applicant did not satisfy criterion 3001.

3. On 19 March 2015 the applicant applied to the Migration Review Tribunal (MRT) who affirmed the delegate’s decision on 27 August 2015. The MRT’s decision, however, was set aside on 9 May 2016, and the matter was remitted to the Tribunal.

4. By letter dated 19 May 2016 the Tribunal informed the applicant’s agent that the matter had been remitted to the Tribunal, and invited the applicant to provide “any further submissions or evidence about your circumstances, including information about circumstances arising after the time you applied for the visa”.[2] The applicant’s agent responded by email sent on 2 June 2016 requesting an extension to provide “medical evidence to the tribunal in regards to the applicant and his wife”.[3] The Tribunal granted that extension, and, on 14 June 2016, the applicant’s agent sent an email to the Tribunal attaching “some minor submissions”, and a letter from the sponsor’s doctor listing the sponsor’s medical history.[4]

   [2] CB236

   [3] CB238

   [4] CB243-245

5. By letter dated 5 October 2016 the Tribunal invited the applicant to appear before it on 21 November 2016 to give evidence and present arguments.[5] By email sent on 18 November 2016 the applicant’s agent informed the Tribunal the applicant would not be able to attend the hearing because of illness. The agent stated the applicant suffers from diabetes, and has had all but one of his teeth pulled out, and is in extreme pain.[6] By letter dated 21 November 2016 the Tribunal postponed the hearing before it to 23 November 2016.[7] By email dated 22 November 2016 the applicant’s agent requested the hearing be postponed due to the applicant’s illness. By letter dated 28 November 2016 the Tribunal rescheduled the hearing to occur at 3:30 pm on 14 December 2016.[8]

   [5] CB248

   [6] CB250

   [7] CB255

   [8] CB265

6. On 13 December 2016 the applicant’s agent applied for a further postponement of the hearing.[9] That was supported by a medical certificate issued on 13 December 2016 which stated:[10]

   [9] CB267

   [10] CB268

   He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION

   He has complication from diabetes and hypertension, he currently suffers back pain and advised for rest. He will be unable to give evidence at tribunal.

7. At 9:42 am on 14 December 2016 an officer of the Tribunal, at the request of the Tribunal member, telephoned the applicant’s agent and said the Tribunal member is happy to conduct the hearing by telephone, and the representative and any witness can attend in person. The agent said “he is in doubt that the RA [that is, the review applicant] would be able to do so but he will check with his client and will inform the tribunal accordingly”.[11] At 3:38 pm an officer of the Tribunal, again at the direction of the Tribunal member, telephoned the applicant’s agent and asked if the applicant was available to give evidence by telephone. The applicant’s agent said he had “left 4 messages but the RA did not return his calls”. Neither the applicant nor any person on his behalf appeared before the Tribunal on 14 December 2016.

   [11] CB271

8. The applicant’s not appearing before the Tribunal enlivened the power provided by s.362B of the Act. That follows from s.362B(1) which provides that s.362B applies if the applicant is invited under s.360 of the Act to appear before the Tribunal, but does not appear before the Tribunal on the day on which or at the time and place at which the applicant is scheduled to appear. Under s.362B(1A), in those circumstances, the Tribunal may do one of two things. Relevant to the case before me is that which is provided for by paragraph (b), which states that the Tribunal may:

   by written statement under section 362C(2), dismiss the application without any further consideration of the application or information before the Tribunal.

9. By letter dated 14 December 2016 the Tribunal informed the applicant’s representative that it decided not to postpone the hearing, and invited the applicant to provide submissions by the close of business on 21 December 2016 “as to why” the Tribunal “should not dismiss the application for review for that reason under section 42A(2) of the Administrative Appeals Tribunal Act 1975”.[12] On 21 December 2016 the applicant’s agent sent an email to the Tribunal attaching a letter dated 21 December 2016. The agent stated the applicant did not attend the hearing on the designated date due to his diabetes and hypertension, he feels dizzy, and is unable to walk straight.

   [12] CB278

10. On 22 December 2016 the Tribunal made a decision under s.362B(1A)(b) of the Act dismissing the application (non-appearance decision).[13] As required by s.362C(2) of the Act, the Tribunal made a written statement in the form of a letter addressed to the applicant setting out its decision, the findings for the decision, and the reasons for the decision. In its letter the Tribunal stated it dismissed the application because the applicant gave no satisfactory explanation for not appearing on 14 December 2016. The Tribunal relied on the Tribunal’s having previously agreed to the applicant’s two requests for an adjournment, on 13 December 2016 the applicant’s representative seeking a further adjournment, the Tribunal’s inviting the applicant to appear by telephone, the Tribunal’s inviting submissions from the applicant why it should not dismiss the application for review, and the applicant’s agent providing an update on the applicant’s medical condition after speaking with him by telephone.

    [13] CB285

11. As it was required to do under s.362C(5) of the Act, the Tribunal notified the applicant of the non-appearance decision on 23 December 2016 by sending its written decision by email to the email address of the applicant’s agent. Attached to the letter was a document titled “Information about dismissal of applications – MR Division”.  That document contains a section under the heading “What happens if an application is dismissed” which gives information about the applicant’s rights to apply for reinstatement. That includes a statement to the effect required by s.362C(7):

    Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

12. On 30 December 2016 a colleague of the applicant’s agent sent an email to the Tribunal seeking reinstatement. Attached to this email was the letter from the applicant’s agent dated 21 December 2016 to which I refer to in paragraph 10 of these reasons, and the medical certificate issued on 13 December 2016 to which I refer to in paragraph 7 of these reasons. On 1 February 2017 the Tribunal made a decision under s.362B(1C)(b) of the Act confirming the dismissal. After recounting the history, the Tribunal found that the brief medical certificate the applicant’s agent provided to the Tribunal “did not satisfy the Tribunal that” the applicant could not attend either in person or by telephone because of his medical conditions; and the applicant provided no further evidence that might explain or excuse his failure to attend. The Tribunal found that, without medical evidence from a medical practitioner about symptoms that could have prevented the applicant from giving evidence, the Tribunal “remains unconvinced that” the applicant could not attend the hearing either in person or by telephone.

Course of hearing before the Court

1. The applicant was not legally represented at the hearing before me, but he was assisted by an interpreter. Much of the hearing was devoted to an application for an adjournment the applicant made and, for reasons stated in a separate judgment, I dismissed that application. A significant part of the hearing was also devoted to proving that the applicant had been served with the bundle of documents. That was necessary because the applicant claimed he did not receive the bundle of documents.

2. Ms Warner Knight, the lawyer for the Minister, gave evidence in chief of the circumstances in which she arranged to send the bundle of relevant documents to the applicant by post. Ms Warner Knight said that at all times she has been the lawyer having carriage of the matter on behalf of the Minister, that she particularly remembered the circumstances in which she composed the letter dated 11 July 2017 which she caused to be sent to the applicant because the bundle of relevant documents was substantially the same as the previous bundle of documents she had caused to send to the applicant (which he accepted he had received) in relation to the application for judicial review of the MRT’s decision, and that her usual practice was that, once she satisfied herself the bundle of relevant documents and the covering letter were correct, she instructed her secretary to send the documents by post. Ms Warner Knight further said that throughout her acting in the matter she had not been made aware of any correspondence she had arranged to send to the applicant having been returned. After giving this evidence, Ms Warner Knight tendered the bundle of relevant documents, and a copy of the letter dated 11 July 2017 addressed to the applicant.

3. The applicant gave evidence that he did not receive the bundle of documents, and he was cross-examined. He confirmed that he lived at the address Ms Warner Knight addressed her letter dated 11 July 2017 to; that only he and his wife lived at that address; and that the applicant had lived with his wife at that address since around 2011. After the applicant completed his evidence I announced to the parties that I was satisfied that Ms Warner Knight caused to send the relevant documents to the applicant by post at the address for service he notified in his application, and that the applicant received those documents in the ordinary course of the post.

4. I then attempted to direct the applicant to the issues relevant to the application for an order under s.477(2) of the Act. The applicant had very little understanding of what was in his application. He said his friend helped him prepare the application.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[14]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [14] [2013] FCA 1284 at [47]-[48]

   (b)    Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[15] Further:[16]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [15] [2015] FCA 1391 at [63] (cases cited omitted)

   [16] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[17] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[18]

   [17] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [18] [2015] FCA 1391 at [62]

Explanation for delay

1. In the section of the application which requires the applicant to state the grounds on which he seeks an extension of time, the applicant states:

   1.It is ten days after the allowed time.

   2.Did not understand whether time was addition to [illegible].

   3.Had the decision explained time and then understand that can apply and hope to be heard.

2. In response to my question what explanation the applicant had for his delay in applying to this Court, he asked me to what delay I was referring and, after I explained that to him, the applicant said at that time he knew nothing.

3. The effect of the applicant’s explanation is that he was not aware he was required to apply to this Court within 35 days after the Tribunal’s decision made on 1 February 2017. Whether or not that is true, ignorance is not an adequate explanation for the applicant’s delay. Given the relatively short period of the delay, however, I would not regard the absence of an adequate explanation to be a matter that would weigh significantly against the applicant, if he otherwise has a reasonably arguable case of jurisdictional error.

Apparent merits of proposed grounds

1. The application contains the following grounds.

   1.I believe that the Tribunal did not make the right decision since I was given time before to appear but then no time even though I sent in documents showing my health issues.

   2.Case was dismissed even after provision of evidence.

   3.Case was not heard at all, was not given the lawful opportunity to present my case.

   4.No proper decision was forwarded just notification.

2. The first ground appears to take issue with the Tribunal’s decision that it was not satisfied that the medical evidence the applicant provided in support of his application for reinstatement and, perhaps, in support of his application for a further adjournment, recorded symptoms that could have prevented the applicant from giving evidence, and that the Tribunal remained unconvinced that the applicant could not attend the hearing. This does not raise any arguable case of jurisdictional error. It was for the Tribunal, acting reasonably and rationally, to determine whether it was satisfied that the medical material on which the applicant relied prevented the applicant from giving evidence either by the applicant attending in person or by telephone. There is no arguable case that, on the material before the Tribunal, it was not reasonably open to it to find it was not satisfied that the medical evidence on which the applicant relied prevented the applicant from attending the hearing in person or by telephone.

3. Ground 2 appears to make the same complaint as ground 1, but may also be taken to claim the Tribunal acted unreasonably in not granting the applicant an adjournment or not reinstating the application for review given the medical evidence the applicant, though his agent, provided to the Tribunal. That, however, is not reasonably arguable. It was reasonably open to the Tribunal to find the medical certificate the applicant provided did not identify the symptoms which prevented or which could reasonably have been seen as preventing the applicant from giving evidence, either by attending the hearing before the Tribunal or by telephone.

4. Ground 3 may be taken to claim that the preconditions for the exercise of the powers under s.362B(1A)(b) and s.362B(1C)(b) of the Act had not accrued by the time the Tribunal purported to exercise those powers. If that is what ground 3 is intended to claim, it is not arguable. The Tribunal invited the applicant to appear before it to give evidence and present arguments, as it was required to do by s.360 of the Act; the Tribunal did so by issuing letters sent to the email address of the applicant’s agent; and the applicant did not attend the hearing of 14 December 2016. That engaged the power under s.362B(1A)(b) of the Act to dismiss the application for review, which the Tribunal exercised. The preconditions for exercising the power under s.362B(1C)(b) of the Act were also satisfied when the applicant, through his agent’s colleague, submitted within the permitted time submissions in support of reinstatement.

1. Ground 3 may also be taken to claim that the Tribunal’s decisions to dismiss and then to confirm the reinstatement were legally unreasonably. If that is what ground 3 is intended to claim, that, too, is not arguable. It is not arguable that, given the evidence that was before it, and the reasons on which it relied, the Tribunal’s decisions lacked an evident and intelligible justification, or are decisions that no reasonable Tribunal could have made in the circumstances that were before the Tribunal.

2. It is not clear what ground 4 is intended to claim. It could be taken to claim that either or both of the Tribunal’s decisions, one a decision under s.362B(1A)(b) of the Act to dismiss the application for review, and the other under s.362C(1)(b) of the Act to confirm that dismissal, were not valid. If that is what ground 4 intends to claim, it is not arguable. I have already found it is not arguable that the preconditions for the exercise of the powers had not accrued, or that the Tribunal’s decisions were legally unreasonable.

3. Perhaps ground 4 is intended to claim the applicant was not properly notified of the decision. If that is the claim, it, too, is not arguable. The Tribunal communicated both decisions by sending them to the email address of the applicant’s agent. That is the address nominated in the applicant’s application for review to the Tribunal as the address of the applicant’s representative. Under s.379G(1) of the Act, the Tribunal was required to give the statements recording its decisions to the applicant’s agent, and s.379A(5)(b) permitted the Tribunal to give notice to the applicant’s representative by sending it by email to the applicant’s agent’s email address.

Grounds stated in affidavit and hearing

1. In his affidavit the applicant filed with his application in this Court, the applicant claims the Tribunal did not allow the applicant “a hearing when it was supposed to, and it dismissed a case when it had allowed time to review and then dismissed the case affirming the decision without a hearing unfairly”. This may be taken to claim both that the Tribunal did not have the power to make the decision it made and that it exercised those powers unreasonably. For reasons I have already given, such claims are not arguable.

2. At the hearing before me, after I explained to the applicant the decisions the Tribunal made, I asked him why the decisions should be set aside. The applicant said he wanted to seek assistance from Legal Aid, and he wanted to present documents, including medical certificates, to me. This does not raise any arguable case of jurisdictional error.

Conclusion and disposition

1. I have concluded the applicant had not given an adequate explanation for the delay in applying to this Court for a remedy in relation the Tribunal’s decision of 1 February 2017; and I have found that the grounds or submissions on which the applicant relies do not disclose any arguable case of jurisdictional error. These matters lead me to conclude I am not satisfied it is necessary in the interests of the administration of justice that I should make an order under s.477(2) of the Act extending the time provided for by s.477(1) of the Act for the applicant to apply to this Court for remedies in relation to the Tribunal’s decision. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed. I will consider the question of costs when I pronounce my order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 November 2019