FEDERAL COURT OF AUSTRALIA

Gordon v Minister for Immigration and Citizenship [2012] FCA 119

THE COURT ORDERS THAT:

The application be dismissed with costs fixed in the amount of $3,721 pursuant to r 40.02 of the Federal Court Rules 2011.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for an extension of time to appeal from a decision of the Federal Magistrates Court dated 20 October 2011, wherein the Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.

Background

2    The applicant is a national of Ghana. She was granted a Student visa in September 2004 and first entered Australia on 10 September 2004. On 4 March 2005 the applicant was granted a Visitor visa, which was valid until 4 June 2005. In June 2005 the applicant applied for a Partner (Temporary) (Class UK) visa, which is the subject of this review. She was sponsored in that application by Mr Christopher Eworho, an Australian citizen whom the applicant married on 17 April 2005.

3    Following correspondence with Mr Eworho in 2006 the Department sought further information about the status of the applicant’s application.

4    On 26 April 2007 the applicant’s migration agent wrote to the Department, stating that the applicant wished to withdraw her visa application, and attaching a handwritten letter from the applicant. The Department also received a handwritten letter from Mr Eworho in which he claimed that the relationship of husband and wife between the himself and the applicant had ended on 24 March 2006 because the applicant had formed a relationship with another man.

5    On 2 January 2008, however, a new migration agent acting for the applicant wrote to the Department claiming that, inter alia, at no time had the applicant withdrawn her visa application. On 30 April 2008 the Department confirmed that the application was “no longer deemed withdrawn”.

6    On 1 May 2008 the Department wrote to the applicant’s migration agent seeking evidence as to the genuineness of the relationship between the applicant and Mr Eworho, and seeking comment from the applicant as to whether the applicant’s relationship with Mr Eworho had been contrived only for immigration purposes. The applicant responded in writing to the Department affirming the genuineness of her relationship with Mr Eworho.

7    On 4 March 2009 the Department invited the applicant and Mr Eworho to attend an interview. Mr Eworho did not attend that interview, or a later interview subsequently arranged by the Department. The applicant informed the Department that Mr Eworho wished to withdraw his sponsorship of her and that she was no longer in a spousal relationship with Mr Eworho, however she did not wish to withdraw her visa application.

8    The delegate of the Minister refused to grant the applicant’s visa on 7 April 2009. The delegate refused the visa application on the basis that the applicant did not satisfy cl 820.211 of Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the delegate was not satisfied that the applicant was in a genuine spousal relationship with the sponsor.

9    The applicant applied to the Tribunal on 6 May 2009 for review of the delegate’s decision.

The Tribunal

10    The Tribunal stated that the principal issue in this case was whether the applicant was the spouse of the sponsor at the relevant time.

11    The applicant told the Tribunal in her oral evidence that her relationship with Mr Eworho had ceased in 2009. Evidence before the Tribunal provided by the applicant indicated that the applicant had fallen pregnant in 2009 and that the father of her child was not Mr Eworho. The applicant’s son, born on 25 November 2009, was added to the applicant’s visa application.

12    The Tribunal found that the applicant’s relationship with Mr Eworho ended in 2009 and, in light of this fact, the applicant no longer met the criteria in cl 820.211.

13    Further, the Tribunal found that the circumstances of the applicant did not meet cl 820.221(1)(a) of the Regulations. The applicant informed the Tribunal that there was an instance of domestic violence perpetrated by Mr Eworho, but did not provide any evidence of domestic violence in accordance with the requirements in Div 1.5 of the Regulations. As a result, the Tribunal was not satisfied that the applicant had suffered domestic violence committed by the sponsoring spouse and concluded that the applicant did not meet cl 820.221.

14    Finally, the Tribunal found that there was no evidence that the applicant had custody or joint custody of a child in respect of whom the sponsoring spouse had been granted joint custody or access or in respect of whom Mr Eworho had an obligation of maintenance. Accordingly, the Tribunal was not satisfied that the applicant had met the requirements of cl 820.221(3)(b)(ii).

The Federal Magistrates Court Proceedings

15    On 11 March 2011 the applicant filed an application for judicial review with the Federal Magistrates Court. This application was amended on 17 August 2011 and included the following grounds:

1.    The Tribunal erred in holding that the applicant does not satisfy the requirement of cl 820.221.

2.    The Tribunal failed to comply with s.65 of the Act.

3.    The Tribunal breached s. 359A of the Act.

4.    The Tribunal failed to review the decision under s.348 of the Act.

5.    The Tribunal committed a jurisdictional error of law for the purposes of s.75(v) of the Constitution.

16    The Federal Magistrate found that contrary to the applicant’s contention, the Tribunal did not refuse to consider her claim of domestic violence. The Tribunal found that it was not satisfied on the material before it that the applicant or a dependent child had suffered domestic violence in the sense referred to in the Migration Act 1958 (Cth) (“the Act”) and the Regulations, particularly as no evidence as to this claim had been provided by the applicant in the form required by Div 1.5 of the Regulations. The Federal Magistrate further stated that it was not in dispute that the applicant did not provide any evidence in the form required by Div 1.5 of the Regulations. The Federal Magistrate found that the Tribunal did not fail to have regard to a relevant consideration, as claimed in substance by the applicant, and found further that the applicant had not established that the Tribunal failed to fulfil its duty under s 65 of the Act.

17    In relation to ground 3, s 359A of the Act requires, inter alia, that the Tribunal give to the applicant clear particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, and invite the applicant to respond to it. To the extent that the applicant claimed the Tribunal failed to invite the applicant to give evidence in accordance with Div 1.5 of the Regulations to support her claim that she had suffered domestic violence, the Federal Magistrate found:

    “Information” refers to positive adverse information that undermines the factual claims made by an applicant.

    The Tribunal is under no obligation to write to the applicant to identify the legal defects in her application, or advise her how she might overcome such defects (cf SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]); and

    The Tribunal is under no obligation to put to the applicant its thought processes or provisional reasoning (at [46]).

18    Accordingly, the learned Federal Magistrate found that the Tribunal was not obliged by s 359A to invite the applicant to provide evidence of domestic violence in accordance with Div 1.5 notwithstanding that the absence of such evidence was a reason for concluding that the applicant did not meet the applicable criteria (at [47]).

19    In relation to information received by the Tribunal from Mr Eworho in relation to the spousal relationship, the Federal Magistrate found that it was clear that the Tribunal, in its reasons for its decision, did not rely on any of the material Mr Eworho had provided in deciding that the relationship was no longer continuing. Indeed, in its findings and reasons the Tribunal did not refer to that information or any of the other information from Mr Eworho – rather the Tribunal had concluded that the spousal relationship had ceased in June 2009 on the basis of the applicant’s own evidence.

20    In relation to ground 4, s 348 of the Act requires the Tribunal to review a decision if an application is properly made under s 347. In substance, the applicant claimed that the Tribunal was required to consider all the evidence (including in relation to domestic violence) in order to review the decision of the delegate, and it had failed to do so. The Federal Magistrate found that this ground was unsubstantiated, because the Tribunal had clearly carried out a review and made a decision (at [78]).

21    In ground 5 the applicant claimed lack of procedural fairness. The learned Federal Magistrate found that there was no evidentiary basis for the Court to find that the decision of the Tribunal had been made without procedural fairness, particularly in circumstances where the applicant herself had told the Tribunal at the hearing that her relationship with the sponsor was over in June 2009 and that she had had a child by another man.

22    Accordingly her Honour dismissed the application for review.

Application to this Court

23    On 16 November 2011 the applicant filed an application for extension of time to appeal in this Court. This application included the following grounds:

1.    I state that when I received the decision I did not have the money ($3007) to lodge the appeal. I also understood that I have 28 days in which to lodge the appeal to the Federal Court.

2.    I went to the Department of Immigration and lodged an application for a bridging visa C on 14 November 2011. I was of the understanding that Immigration has the power to give me more time to appeal my matter to the Federal Court.

3.     On 16 April 2011 a delegate of the Department telephoned me and said that if I needed time I had to apply to the Federal Court for extension of time and not Immigration. The delegate also said to me that she cannot grant me the visa unless I have my application before the Federal Court.

24    On 24 November 2011 the applicant filed a draft Notice of Appeal which set out the following grounds:

1.    Her Honour erred in holding that the Tribunal considered the evidence (claim) by the appellant that she had suffered Domestic violence for the purposes of cl.820.221 (3).

2.    Her Honour erred in failing to hold that the Tribunal breached s.65 of the Act when it held that it could not consider the applicant’s evidence of domestic violence because she did not present evidence of domestic violence in accordance with statutory requirements.

3.    Her Honour erred in failing to hold that the Tribunal’s use of the word “consider” within the context of the Tribunal statement “it could not consider the applicant’s evidence of domestic violence” constitutes a constructive failure to comply with s 65 of the Act.

4.    Her Honour erred in holding that the Tribunal’s use of the word “consider” in relation to what occurred at the hearing was describing by way of summary what occurred at the hearing.

Consideration

25    Rule 36.03 of the Federal Court Rules 2011 provides as follows:

Time for filing and serving notice of appeal

An appellant must file a notice of appeal:

(a)    within 21 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)    the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.

26    It is not in dispute that, in this proceeding, the applicant has failed to file a notice of appeal from the decision of the Federal Magistrate below in accordance with r 36.03.

27    Applications for an extensions of time for lodgement of notices of appeal are subject to r 36.05 of the Federal Court Rules 2011, which provides:

Extension of time to file notice of appeal

(1)    A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.

(2)    The application may be made during or after the period mentioned in rule 36.03.

(3)    The application must be accompanied by the following:

a.    The judgment or orders from which the appeal is to be brought;

b.    The reasons for the judgment or orders, if published;

c.    An affidavit stating

i.    Briefly but specifically, the facts on which the application relies; and

ii.    Why the notice of appeal was not filed within time;

d.    A draft notice of appeal that complies with rules 36.01(1) and (2).

28    In SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388, Cowdroy J, in considering an application for an extension of time pursuant to r 36.05, held that principles relevant to the exercise of the power pursuant to that rule were the same as outlined by Wilcox J in the well-known case Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348-349). In particular, in considering such an application the Court should have regard to such matters as:

    the length of the delay;

    whether there is any prejudice to the first respondent;

    whether the applicant has provided an acceptable explanation for the delay; and

    the merits of the appeal should an extension be granted.

29    In this case it appears that the applicant applied for an extension of time barely a week after the time for lodgement of the notice of appeal expired. The Minister has not claimed any prejudice arising from that delay. Reasons given by the applicant for the delay include financial, and the (not unexpected) confusion which sometimes assails litigants in person.

30    The Minister does not appear to contest any of these issues. However, the Minister submits that the application should be refused because there would be no utility in granting an extension of time. In particular, the Minister submits that the appeal has no prospect of success because:

    the application does not identify any appealable error in the decision of the Federal magistrate; and

    no error is otherwise apparent in the reasons of the Federal Magistrate.

31    In its decision, the Tribunal explains in detail the necessary process for partner visa applications. The Tribunal noted that only cl 820.211(2) was relevant to the applicant’s claimed circumstances, and that it required that at the time of application the visa applicant be the spouse of (inter alia) an Australian citizen. The Tribunal explained further that the Regulations require in summary that the relationship be characterised by a mutual commitment, be genuine and continuing, and that the couple live together.

32    The draft grounds of appeal of the applicant focus on whether her Honour below and the Tribunal erred in relation to an allegation of domestic violence by the applicant against Mr Eworho. In particular, at [31] of its decision the Tribunal observed as follows:

The applicant confirmed that she was sponsored by Mr Christopher Eworho. She said that her relationship with the sponsor ceased in June 2009 and they had been separated since then. The Tribunal explained to the applicant the requirements of cl. 820.221 and the exceptions in cl. 820.221 (3). The applicant said that there was one instance of domestic violence and she took the case to court but did not obtain the final AVO. The Tribunal noted that since she did not present evidence of domestic violence in accordance with the statutory requirements, it could not consider the claim…

33    The Minister submits that regs 1.23, 1.24 and 1.25 in Div 1.5 of the Regulations as in force at the relevant time had the effect that, in the absence of court order or joint undertaking to a court, a visa application is only taken to include a claim of family violence in circumstances where the claim is supported by a statutory declaration made by the applicant regarding the alleged incident. In my view this submission correctly states the law at the relevant time. It is not in dispute that no such statutory declaration was provided either with her visa application or to the Tribunal. To the extent that it was able on the material before it the Tribunal considered the claim of domestic violence, however on that material the Tribunal could not be satisfied that the applicant had suffered family violence committed by her spouse for the purposes of cl 820.221(3)(b)(i).

34    The Federal Magistrate considered the relevance to the applicant’s visa application of a claim of domestic violence in [36]-[42] and [77]-[78]. Of particular relevance to the appeal before me (in particular ground of appeal 3) are [77]-[78] where her Honour observed:

77.    Ground four is that the Tribunal failed to review the decision under s.348 of the Migration Act. The particulars are that:

The Tribunal was required to consider all the evidence in order to review the decision. The Tribunal having stated that it did not consider the applicant’s evidence of domestic violence failed to review the decision.

78.    This ground is not made out for the reasons that ground two was not made out. Section 348 of the Act compels the Tribunal to make a decision in circumstances where an application has been “properly made” (see Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 at [47] and Keo v Minister for Immigration and Citizenship and Another (2008) 222 FLR 53; [2008] FMCA 1502 at 124.) However in this case, as evidenced by the decision, the Tribunal clearly carried out a review and made a decision. As discussed above, there is nothing to indicate that the Tribunal failed to consider any claim made by the applicant in the sense of any integer of her claims or indeed that it failed to consider all the evidence that was before it. The Tribunal’s reference to not considering the applicant’s evidence of domestic violence does not amount to a statement that it did not in fact address the claim that she made in that respect, as is apparent from the Tribunal’s findings and reasons. Ground four is not made out.

35    In my view no error is demonstrated in these observations of her Honour. No constructive failure of the Tribunal to consider the applicant’s claim of domestic violence is demonstrated.

Conclusion

36    In my view the draft grounds of appeal are unmeritorious. I accept the submission of the Minister that there would be no utility in granting an extension of time in which the applicant could file a notice of appeal.

37    The application is dismissed with costs.

Associate:

Dated:    21 February 2012