Younas v Minister for Immigration

[2013] FCCA 595

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNAS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 595

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – refusal of extension of time for judicial review application.

Legislation:  
Migration Act 1958 (Cth), ss.5F, 351, 477

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMNO v Minister for Immigration [2009] FCA 797
SZNOR v Minister for Immigration & Anor [2009] FMCA 639
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197

Applicant: MUHAMMAD YOUNAS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 469 of 2013

Judgment of: Judge Driver

Hearing date: 21 June 2013

Delivered at: Sydney

Delivered on: 21 June 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper

INTERLOCUTORY ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 469 of 2013

MUHAMMAD YOUNAS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised for transcript)

1. I have before me an application filed on 11 March 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal). The Tribunal decision was made on 16 January 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Younas a partner visa. Pursuant to s.477(1) of the Migration Act 1958 (Cth) (Migration Act), the application needed to be filed by 20 February 2013. Mr Younas accordingly needs an extension of time of approximately two and a half weeks. The application recognised that difficulty and sought the exercise of the Court’s discretion, pursuant to s.477(2).

2. The following statement of background facts is derived from the Minister’s outline of submissions filed on 14 June 2013. 

3. Mr Younas is a male citizen of Pakistan.[1]  He arrived in Australia on 4 December 1999 as the holder of a Subclass 676 Tourist visa.[2]

   [1] CB 54-55

   [2] CB 100

4. Mr Younas applied for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on the basis of his spousal relationship with an Australian citizen.[3]  Mr Younas married his sponsor, Rashida Begum Mohammad, on 10 January 2010 and applied for a partner visa on 4 February 2010.

   [3] CB 1-35

5. Partner visas are granted in two stages, first the temporary visa is granted and then the residence visa is considered for grant after two years.  Mr Younas was refused the grant of the visa at the first stage. 

6. A delegate of the Minister refused the grant of the visa by decision dated 6 January 2011.[4]  Mr Younas sought MRT review of the delegate's decision on 21 January 2011.[5]

   [4] CB 100-105

   [5] CB 108-114

7. Mr Younas’ sponsor died in March 2012, while the Tribunal proceedings were on foot.[6]

   [6] CB 142

8. The Tribunal made its decision on 16 January 2013, affirming the decision not to grant Mr Younas a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.[7] 

   [7] CB 318-344

The Tribunal decision

1. The Tribunal affirmed the decision refusing the grant of the visa on the basis that Mr Younas did not satisfy clauses 820.211(2)(a) and (c) and 820.221(2)(a) and (b) of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), for the reason that he did not meet the definition of “spouse” as set out in s.5F of the Migration Act.

2. Clause 820.211 sets out those criteria which Mr Younas needed to meet at the time of the visa application, and clause 820.221 sets out those criteria which needed to be met at the time of decision: 

   820.211

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

   (a) the applicant is the spouse or de facto partner of a person who:

   (i)      is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)     is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)     the applicant is sponsored:

   (i)      if the applicant's spouse or de facto partner has turned 18 -- by the spouse or de facto partner; or

   (ii)     if the applicant's spouse has not turned 18 -- by a parent or guardian of the spouse who:

   (A) has turned 18; and

   (B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   …

   820.221

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

   (a) would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the sponsoring partner has died; and

   (b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

   (c) has developed close business, cultural or personal ties in Australia.

3. For the purposes of the requirements under 820.211, the term “spouse” is defined in s.5F of the Migration Act as follows:

   (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2) For the purposes of subsection (1), persons are in a married relationship if:

   (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c) the relationship between them is genuine and continuing; and

   (d) they:

   (i)      live together; or

   (ii)     do not live separately and apart on a permanent basis.

4. The Tribunal accepted that at the time of application, Mr Younas and his sponsor were married to each other under a validly recognised marriage and that they therefore met the requirement in s.5F(2)(a).

5. The Tribunal did not accept that at the time of the visa application on 4 February 2010 Mr Younas and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others.[8]  The Tribunal accepted that Mr Younas provided care for the sponsor since July 2011, but did not accept that this evidenced a relationship of mutual commitment as husband and wife.   The Tribunal was also not satisfied that at the time of application the relationship between Mr Younas and the sponsor was genuine and ongoing. 

   [8] see [160]

6. Finally, the Tribunal found that it was not satisfied that at the time of decision, had it not been for the death of the sponsor, Mr Younas and sponsor would have had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship would have been genuine and ongoing.[9]

   [9] see [163]-[164]

7. The Tribunal concluded that Mr Younas did not meet the requirements of s.5F for a married relationship, that he was not the spouse of the sponsor within the meaning of s.5F, and that he did not meet the requirements of clauses 820.211(2)(a) and (c) and 820.211(2)(a) and (b).

The judicial review application

1. In support of the application for an extension of time, the judicial review application simply states that Mr Younas wrote to the Minister for Immigration.  Mr Younas gave a somewhat more detailed account from the bar table, and I gave him the opportunity to give oral evidence to explain his delay in coming to court. 

2. Mr Younas’ evidence is that he was represented before the Tribunal and earlier by Mr Christopher Levingston, who is a legal practitioner.  He paid for Mr Levingston’s services and was assisted by a friend who provided interpretation assistance.  Mr Levingston informed Mr Younas of the outcome of his case before the Tribunal through Mr Younas’ friend.  Mr Levingston then gave certain advice to Mr Younas and informed Mr Younas that in order to take further steps he would require an additional fee.  Mr Younas did not have the money to pay that fee and consulted another friend, Mr Mohamed Tarq. 

3. Mr Tarq is not a migration agent, or a lawyer.  Mr Tarq nevertheless suggested to Mr Younas that he write to the Minister seeking his intervention.  Mr Younas accepted that suggestion.  He and Mr Tarq prepared a letter to the Minister and sent it.  The Minister’s Department responded approximately one week later.  The Department ultimately advised that there would be no Ministerial intervention, and that Mr Younas needed to make arrangements to leave the country.  Mr Tarq then suggested to Mr Younas that he should make an application to this Court.  That application and an affidavit supporting it were prepared with the assistance of Mr Toufic Laba-Sarkis. 

4. I accept Mr Younas’ evidence.  Unfortunately for him, I do not accept that it provides a sufficient explanation for his delay in coming to Court. 

5. I have before me as documentary evidence the court book filed on 22 April 2013. 

6. The court book records[10] that Mr Younas wrote to the Minister seeking his intervention pursuant to s.351 of the Migration Act by letter dated 12 February 2013. The request was acknowledged by letter from the Minister’s Department dated 19 February 2013. The letter is reproduced at page 349 of the court book.

   [10] at page 346

7. The letter explained the circumstances in which the Minister would consider requests for his intervention.  The letter also warned that Mr Younas should not discontinue any application for judicial review on the expectation that the Minister would intervene.  Although the letter, understandably, does not expressly invite Mr Younas to make any application for judicial review, it could and should, in my view, be taken as a warning that the request for Ministerial intervention should not be seen as a reason to delay the exercise of other legal rights.  It would perhaps have been clearer if the letter had more expressly warned that time was running on the exercise of any right to seek judicial review. 

8. The Department’s response to the request for intervention is set out in a letter dated 8 March 2013[11]. The letter advised that the Department had not sent the request to the Minister. The letter noted that Mr Younas had made a previous request for Ministerial intervention under s.351. The letter explained that, in those circumstances, there needed to be a significant change in an applicant’s circumstances raising new substantive issues not previously considered, which brought he case within the Minister’s guidelines for the consideration of intervention.

   [11] court book, pages 353-354

9. The exercise, non-exercise, or refusal to exercise the Minister’s power of intervention is not within the scope of this Court’s jurisdiction to review.  Nevertheless, I express my surprise that the Department did not consider there had been a significant change in Mr Younas’ circumstances.  Mr Younas has apparently been in this country since 1999.  Over that time he has apparently applied for various kinds of visas.  He has apparently sought Ministerial intervention previously in relation to previous applications for different classes of visas.  There is no record of any previous request for Ministerial intervention in relation to Mr Younas’ claim to a spouse visa based upon his marriage. 

10. I would have thought myself that, notwithstanding Mr Younas’ extensive visa application history, his marriage, which was accepted as legal, at least in form, in circumstances where his wife has unfortunately died, was a significant change in circumstances raising a new substantive issue.

11. In considering the issue before the Court, namely, the question of whether time should be extended for the judicial review application, the Court must consider the length of the delay, the reason for the delay, and whether there is an acceptable explanation for the delay.  There are other considerations, and I accept the Minister’s submissions in relation to the relevant considerations in [21]-[24] of the Minister’s submissions:

    Pursuant to section 477(2) of the Act, the Court may order that the time period under section 477(1) be extended if it is satisfied that it is in the interests of the administration of justice to make the order.

    In determining whether the grant of the extension of time is in the interests of the administration of justice, the Court will generally have regard to the following factors:[12]

    ·    The length of the delay and the reason for the delay, including whether there is an acceptable explanation for the delay.

    ·    The merits of the substantive explanation.

    ·    Any prejudice to the respondents.

    The Court has also looked at several other factors,[13] including:

    ·    The impact on the applicant.

    ·    The interests of the public at large.

    ·    The exercise of the Court's discretion (or any other discretionary factors).[14]

    [12] See SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14] and SZNOR v Minister for Immigration and Citizenship [2009] FMCA 639 at [14]-[16].

    [13] See SZMFJ v Minister for Immigration & Citizenship [2009] FMCA 771, per Nicholls FM, at [44]. See also SZNZU v Minister for Immigration & Anor [2010] FMCA 197, in which Barnes FM, at [51]-[55], considered the notion of “in the interests of the administration of justice” and held that it was necessary to have regard to all the circumstances but that the factors at SZMFJ were 'a good starting point'.

    [14] In SZNZI v Minister for Immigration & Anor [2010] FMCA 57 Smith FM, at [11], Smith FM also held that none of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations - whether there is a reasonable explanation for the delay and whether there is a material argument on the merits. Smith FM observed that the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in section 477(2)(b) of the Act.

12. The Minister concedes that there is no prejudice to the respondents should an extension of time be granted.  The Minister also concedes that the delay in this present case is not a lengthy one. 

13. The Minister contends, however, that the request for Ministerial intervention is not a sufficient explanation for the delay.  I agree.  In my view, based upon his own evidence, Mr Younas made a considered and informed choice to seek Ministerial intervention before seeking judicial review.  He was represented before the Tribunal by an experienced legal practitioner.  He received advice from that practitioner after the Tribunal’s decision was communicated to him.  He also received advice from his friend, Mr Mohamed Tarq.  Mr Tarq’s proposal that Mr Younas should seek Ministerial intervention was, in the circumstances, a reasonable one.  The request was unsuccessful, but obviously no guarantee of success on such a request could be expected.

14. Mr Younas acted promptly after the refusal of Ministerial intervention to lodge his application with the Court.  However, in my view, Mr Younas should have, and could have, acted within the prescribed period to lodge his application.  I find that Mr Younas has not advanced a persuasive explanation for his delay in coming to Court. 

15. Even if I had been persuaded on that issue, I would still refuse to extend time.  That is because the application for judicial review does not raise any arguable case of jurisdictional error.  Both the application and Mr Younas’ submissions in support of it simply cavil with the merits of the Tribunal decision.  Those merits are beyond the scope of any proceeding for judicial review. 

16. It may seem harsh that a person who has entered into a marriage legal in form, and who has acted as the carer of his disabled spouse, and where that spouse has unfortunately died and, hence, can give no evidence, has been found not to be in a genuine spousal relationship.  However, the Tribunal’s decision is a carefully reasoned one.  The Tribunal considered all of the material before it.  The Tribunal complied with all relevant elements of the procedural code binding it.  While it is understandable that Mr Younas is concerned about the outcome of the review before the Tribunal, I see no arguable case of jurisdictional error by the Tribunal.

17. I will, accordingly, order that the application for an extension of time, pursuant to s.477(2) of the Migration Act be refused. The application for judicial review, in consequence, is incompetent.

18. In consequence of the refusal of an extension of time, the Minister seeks an order for costs, fixed in the sum of $2,800.  Mr Younas referred again to the merits of his spouse visa application, but made no submissions bearing on the issue of costs.

19. I will order that Mr Younas pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

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

Date:  25 June 2013