Yaacoub v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 474
•3 May 2022
FEDERAL COURT OF AUSTRALIA
Yaacoub v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 474
Appeal from: Application for an extension of time and leave to appeal: Yaacoub v Minister for Immigration and Anor [2019] FCCA 3185 File number: NSD 2001 of 2019 Judgment of: NICHOLAS J Date of judgment: 3 May 2022 Catchwords: MIGRATION – application for partner visa – where decision refusing such application affirmed by the Administrative Appeals Tribunal – whether primary judge erred in summarily dismissing application for judicial review – whether applicant should be granted extension of time and leave to appeal – whether proposed appeal has reasonable prospects of success
Held: application for extension of time and leave to appeal dismissed
Legislation: Federal Circuit Court Rules (2001) (Cth) r 44.12(1)(a), 44.12(2)
Migration Act 1958 (Cth) s 5F
Migration Regulations 1994 (Cth) reg 1.15A(3), Sch 2 cl 801.221(2)
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 28 April 2022 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of Mills Oakley Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 2001 of 2019 BETWEEN: CHARBEL YAACOUB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
3 MAY 2022
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal filed on 2 December 2019 is dismissed.
2.The applicant is to pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
On 6 November 2019 a judge of the Federal Circuit Court of Australia made orders dismissing with costs the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 May 2016 affirming the decision of a delegate not to grant the applicant a Partner (Residence) (Class BS) visa. At the time the application was made, Class BS contained one subclass: subclass 801 (Partner). Now before the Court is the applicant’s application for an extension of time in which to seek leave to appeal the primary judge’s judgment.
Leave to appeal is required because the applicant’s application for judicial review was dismissed under r 44.12(1)(a) of the then Federal Circuit Court Rules (2001) (Cth) (“the Rules”). Rule 44.12(2) of the Rules specifies that a dismissal under r 44.12(1)(a) is interlocutory in nature. Accordingly, the applicant requires leave to appeal.
Since the applicant’s application for leave to appeal was not filed until 2 December 2019, the applicant also requires an extension of time. Any application for leave to appeal should have been filed on or before 20 November 2019.
The applicant has given evidence that he understood that he had 28 days in which to file an appeal against the primary judge’s judgment. The Minister contended that the explanation proffered by the applicant for the delay in filing an application for leave to appeal was inadequate. For reasons that follow it is not necessary to consider the adequacy of the applicant’s explanation because the applicant’s proposed appeal has no prospects of success.
BACKGROUND
The applicant is a male citizen of Lebanon. On 24 September 2012, he made a combined application for Partner (Temporary) (Subclass 820) and (Permanent) (Subclass 801) visas on the basis of his marriage to an Australian citizen (“the sponsor”). The applicant provided a copy of his marriage certificate to the Department, which indicated his marriage to the sponsor was registered on 2 September 2012. On 7 November 2012, the applicant was granted a Partner (Temporary) (Subclass 820) visa.
On 2 April 2015, the applicant was invited to comment on information that the spousal relationship upon which his Partner visa application was based had ceased. On 7 April 2015, the applicant responded to the invitation denying that the relationship had ceased.
In a decision dated 6 May 2015, the delegate refused to grant the applicant the Partner (Subclass 801) visa. The delegate was not satisfied the applicant was the “spouse” of the sponsor and therefore found that cl 801.221(2) in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) was not met.
THE TRIBUNAL’S DECISION
The applicant applied to the Tribunal for review of the delegate’s decision on 12 May 2015. The applicant attended a hearing before the Tribunal on 10 May 2016. The applicant, the sponsor, and the sponsor’s father gave evidence. Later that day, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Partner (Subclass 801) visa. The Tribunal was not satisfied the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and found that the applicant did not meet the criteria in cl 820.221(2)(c).
The Tribunal found that the applicant and sponsor had very limited communication and little knowledge about each other. The Tribunal acknowledged that the sponsor may have been affected by drugs and that communication with her was difficult. However, the Tribunal was not satisfied that even during periods when she was not affected by drugs, the parties communicated with each other or that the applicant had an adequate interest in the sponsor’s affairs.
The Tribunal found that the applicant had very little knowledge about the sponsor’s financial affairs. The Tribunal observed that the applicant had no knowledge of the kind or amount of Centrelink payments received by the sponsor. Although they had a joint account, only the applicant’s income was deposited into the account. The Tribunal was not satisfied that the joint account represented a pooling of resources, that the applicant and sponsor shared household expenses or that there was any joint ownership of assets or liabilities.
The applicant’s and sponsor’s evidence before the Tribunal was that the sponsor left the family home from time to time for various periods. The Tribunal accepted that they lived together but was not satisfied that they had established a joint household that reflected a genuine and committed relationship.
The Tribunal found the applicant’s evidence regarding their commitment was problematic. For example, the applicant appeared uncertain in his response when asked whether the sponsor had relationships outside the marriage. The Tribunal was concerned that the relationship was not to the exclusion of all others (as required by s 5F(2)(b) of the Migration Act 1958 (Cth) (“the Act”)), and they did not appear to have established trust and meaningful communication about issues of significance.
The Tribunal was concerned that the applicant had “so little knowledge” about the sponsor. The applicant was not certain about the sponsor’s criminal charges including the nature of the charges or their outcome. The Tribunal found that the applicant’s failure to obtain information from the sponsor’s family or the authorities was indicative of his lack of commitment to the relationship. The Tribunal also observed that the applicant could not name the sponsor’s medical treatment, medication or her treating doctor, although these details were contained in medical documents presented by the applicant to the Tribunal.
The Tribunal accepted that the applicant and sponsor’s relationship was socially recognised. However, the Tribunal was not satisfied that they continue to socialise together as a couple. The Tribunal found that their relationship appeared to have deteriorated in the past two years since the sponsor started using drugs, and the applicant’s own evidence was that it was difficult for them to communicate and maintain a spousal relationship. The Tribunal was not satisfied that the applicant and sponsor continued to be committed to the relationship and found they appeared to have separate lives and took little interest in each other’s affairs. The Tribunal was not satisfied that there continued to be a mutual commitment to the relationship and was not satisfied that the applicant and sponsor provided comfort and support to each other or drew on each other for emotional support.
Having considered each of the matters referred to in reg 1.15A(3), the Tribunal was not satisfied that at the time of the decision, the relationship between the applicant and the sponsor was genuine or continuing.
THE DECISION OF THE FEDERAL CIRCUIT COURT
On 10 June 2016, the applicant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision, which pleaded the following three grounds of judicial review (verbatim):
(1)The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.
(2)The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.
(3)The decision was affected by jurisdictional error in that it was unreasonable.
On 6 November 2019, the parties attended a show cause hearing pursuant to r 44.12 of the Rules. The applicant made oral submissions to the primary judge which, in summary:
(a)Identified the hardships the applicant had undergone and the “difficulties he had encountered in relation to the sponsor’s condition”;
(b)Disagreed with the findings of the Tribunal and asserted the Tribunal had no right to reject the application;
(c)Submitted that the Tribunal had ignored the sponsor’s drug problems; and
(d)Contended that there were compelling circumstances to support his visa application.
The primary judge addressed the first two grounds of the application for judicial review collectively. His Honour observed that both grounds were mere assertions which were devoid of particulars. Ground one failed to identify any irrelevant consideration and ground two did not identify any relevant material or consideration that the Tribunal did not consider. In relation to ground three, the primary judge found the Tribunal had provided detailed reasons for its adverse findings in respect of the mandatory criteria which the Tribunal was required to take into account, and that the Tribunal’s decision did not “lack an evident and intelligible justification”.
The primary judge concluded that the application did not raise an arguable case for the relied claims and that it was an appropriate matter in which to exercise the Court’s powers under r 44.12(1)(a) of the Rules.
THE PROPOSED APPEAL
The draft notice of appeal contains the following two grounds:
1.On 6 November 2019 I appeared before His Honour Judge Street (SYG 1480 of 2016) and I argued my case and His Honour dismissed my application but no judgment is given yet.
2.I continue to believe that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error in that the Tribunal failed to consider the circumstances of my sponsor and failed to act on it, especially that our relationship was long term and genuine and the Tribunal did not consider that the situation of my partner constituted compelling reasons and that her medical condition was not acted upon by the Tribunal.
The primary judge’s judgment was delivered ex tempore. The certificate to the reasons for judgment dated 16 January 2020 indicate that the reasons are the same as those delivered orally on 16 November 2019. It is apparent that the applicant would have had access to the reasons for judgment dated 16 January 2020 from on or shortly after that date when they should have been made available online. In any event, it is apparent that they were included in a bundle of documents filed by the first respondent on 10 February 2020 and served on the applicant by email sent to his email address on that date. The applicant has not filed any further draft notice of appeal nor any written submissions.
It is apparent from the applicant’s draft notice of appeal that the applicant’s complaint is that the Tribunal failed to consider the circumstances of the applicant or his sponsor including her medical condition. That is the primary complaint that was raised by the applicant before the primary judge.
In his submissions in support of the present application, the applicant said that he relied upon the submissions he had made to the primary judge. He also said that the primary judge (and I infer the Tribunal) did not take into consideration his circumstances, including the sponsor’s drug use. He also questioned why the Tribunal should have relied on the fact that he did not know what medications his wife was taking or how much she received from Centrelink, and how these matters could lead it to reach the conclusion that it did. The applicant contended that the primary judge’s decision (and I infer the Tribunal’s decision) was not fair or logical. He also referred to his present circumstances and the fact that he now has a daughter.
In circumstances where the applicant was not legally represented, I have had regard to both s 5F of the Act and reg 1.15A(3) of the Regulations with a view to satisfying myself that the Tribunal took into account all matters it was required to consider. It is apparent from the Tribunal’s reasons that it worked its way through each of the matters identified in reg 1.15A(3) and made findings in relation to each of the relevant matters relating to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the applicant’s and the sponsor’s commitments to each other. There does not appear to be any basis for an argument that the Tribunal failed, in any material respect to take any matter into account that it was required to take into account or that it took into account any matter that it was not permitted to take into account.
In relation to the applicant’s submissions concerning the sponsor’s medications and Centrelink payments, it is important to note that the Tribunal did not regard either of these matters as itself decisive but taken together, and in combination with other matters (eg. the applicant’s lack of knowledge concerning the outcome of the criminal charges), the Tribunal was not satisfied that the applicant and the sponsor were, at the time of its decision, in a spousal relationship.
Minds might differ as to what weight should be given to the applicant’s inability to provide the Tribunal with the details of such matters. However, it is not possible to characterise the Tribunal’s decision as unreasonable in the legal sense on the basis that it lacks any rational foundation, or any evident and intelligible justification, or that it is otherwise unjust, arbitrary or capricious: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] per Allsop J. A finding of legal unreasonableness is not available where the decision is within the area in which the decision-maker has a generally free discretion and which resides within the bounds of legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] per Hayne, Kiefel and Bell JJ. And it is not enough that reasonable minds might differ as to whether or not the Tribunal’s decision to affirm the delegate’s decision was the most appropriate in the circumstances or one with which the applicant strongly disagrees.
Contrary to the applicant’s contentions, and as found by the primary judge, the Tribunal considered the applicant’s and the sponsor’s circumstances, the sponsor’s ill health and drug use, and other matters that it was required to regard. Any appeal based on the contention that the Tribunal failed to consider the sponsor’s circumstances or that the Tribunal should have been satisfied that the applicant and his sponsor were in a genuine and continuing spousal relationship would have no prospects of success.
None of the other matters raised by the applicant point to him having an arguable ground of appeal. Nor does any broader consideration of the Tribunal’s reasons suggest that the applicant has any other arguable ground of appeal.
It would not be in the interests of justice to grant the applicant an extension of time, or leave to appeal, in respect of a proposed appeal that has no prospects of success. On that basis the application for an extension of time and leave to appeal will be dismissed with costs.
Orders accordingly.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 3 May 2022
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