FEDERAL COURT OF AUSTRALIA

Fletcher v Minister for Immigration and Citizenship [2013] FCA 874

THE COURT ORDERS THAT:

1.    Application for an extension of time within which to seek leave to appeal, and application for leave to appeal, from the decision of the Federal Circuit Court of Australia (formerly the Federal Magistrates Court) made on 12 April 2013 is refused.

2.    The applicants pay to the first respondent costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This decision concerns an unsuccessful application for a “Carer” visa by Tenzin Pema, sponsored by James Fletcher. After it was refused, a further application for a “Carer” visa was submitted and granted, so Ms Pema now has a “Carer” visa.

2    The refusal of the first application was challenged in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia). The challenge was summarily dismissed, because it would be futile to progress the claim as the second application had by then succeeded.

3    This application concerns that summary dismissal decision. It is an application from an interlocutory decision, and is a little out of time.

4    Mr Fletcher clearly feels very confronted by the refusal of the first application. He is persuaded that it was wrong, and is searching for sinister motives for it. He is resentful of the need to make the second application, and complains of the time and expense involved and the adverse effect on his health of the decision on the first application.

5    However, for reasons which appear below, in my view his application for an extension of time, and for leave to appeal, from the orders of the Federal Circuit Court must be refused. Whilst I would be prepared to extend the time to apply for leave to appeal if there were any real prospect of his proposed appeal succeeding, I do not think it has any prospect of succeeding. That is firstly because the decision of the Federal Circuit Court is not arguably wrong and secondly because the decision of the Migration Review Tribunal on the first application also was not arguably wrong.

6    The application is refused.

THE FACTS

7    Tenzin Pema, the second applicant, is a citizen of India. On 19 April 2011, she applied to the Department of Immigration and Citizenship (the Department) for a Other Family (Migrant) (Class BO) Subclass 116 (Carer) visa (the visa). She was sponsored for the visa by James Fletcher, the first applicant. Mr Fletcher is her brother-in-law and an Australian citizen.

8    The application for the visa was refused by a delegate of the Minister for Immigration and Citizenship (the Minister) on 24 September 2011. That decision was reviewed by the Migration Review Tribunal (the Tribunal) by application instituted on 30 November 2011. On 22 August 2012, the Tribunal affirmed the decision to refuse to grant to Ms Pema the visa.

9    The reason for the Tribunal’s decision can be shortly stated. Clause 116.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) required Ms Pema to be sponsored by an Australian relative referred to in cl 116.211 or by the Australian relative’s spouse or de facto partner, provided the spouse or partner cohabits with the Australian relative and is himself or herself (relevantly) an Australian citizen. As it happens, the wife of Mr Fletcher, Dolkar Lhamo, is an Australian citizen, and was eligible to sponsor the application for the visa. However, she did not do so at that point.

10    The visa application by Ms Pema also required her to be a “carer” of an Australian relative: cl 116.211(1). By following the definition of “Australian relative”, in reg 1.03 of the Regulations, “close relative” also in reg 113 of the Regulations, and “carer” in reg 1.15AA of the Regulations, it is apparent that a brother-in-law is not an “Australian relative” or a relative for the purposes of sponsorship. As the visa application was not validly sponsored as required by an Australian relative, the Tribunal affirmed the decision.

11    Mr Fletcher and Ms Pema then sought judicial review of the decision of the Tribunal in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) asserting jurisdictional error on the part of the Tribunal. That application commenced on 26 September 2012. Before it came on for hearing, on 14 January 2013, Ms Pema was granted the visa. It is not necessary to explore in detail how that occurred. During submissions, Mr Fletcher said he had resubmitted the same visa application and that on this occasion it had been granted. That outcome has fuelled his discontent. The Minister said that the fresh application included Dolkar Lhamo as a sponsor, so that (as noted in the previous paragraph) the visa could be and was granted.

12    Upon the grant of the visa, solicitors for the Minister encouraged Mr Fletcher and Ms Pema to withdraw the application for judicial review because, in essence, the visa which was the subject of the challenge had been granted in any event. They declined to do so.

13    That led to the Minister applying to have the claim for jurisdictional review of the decision of the Tribunal summarily dismissed on the basis that it was a futile application. That application was made under r 13.10(a) of the then Federal Magistrates Court Rules 2001 (Cth) (the FMC Rules) (now the Federal Circuit Court Rules 2001 (Cth). That application came on for hearing before Federal Magistrate Simpson (now Judge Simpson) on 12 April 2013. His Honour dismissed the application pursuant to r 13.10(a) of the FMC Rules, with costs. He did so because he regarded the application as futile, having regard to the grant of the visa in any event. He awarded costs because he considered that Mr Fletcher and Ms Pema should not have pursued the application once the visa was granted and that the Minister through his solicitors had amply indicated to them that the application was no longer worth pursuing.

14    The decision and orders of the Federal Magistrates Court made under r 13.10(a) of the FMC Rules were interlocutory and it is therefore necessary for any appeal from such orders to be brought only by leave of this Court. In addition, because the decision was an interlocutory one, the time within which an application for leave to appeal from those orders could be made was also limited. That time expired, as indeed did the time for bringing any appeal from that decision, even if the appeal were otherwise as of right.

THE PRESENT APPLICATION

15    On 6 May 2013, the application now before the Court was instituted. It is an application for an extension of time and for leave to appeal from the Federal Circuit Court decision.

16    The decision dismissing the application is interlocutory: see SZDEK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 577; Applicant S1494/2003 v Minister for Immigration and Citizenship [2008] FCA 286. The need for leave to appeal emerges from s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The time limit for seeking leave to appeal from an interlocutory decision is 14 days: r 35.13(a) of the Federal Court Rules 2011 (Cth).

17    The considerations relevant to the exercise of the Court’s discretion to extend time were formulated in SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21] per Cowdroy J as follows:

… the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

18    The discretionary power to grant leave to appeal from an interlocutory decision is also not a power to be “automatically” exercised upon application being made. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) confers on the Court “an unfettered discretion” in “unqualified terms”: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ. In order for the Court to grant leave to appeal the applicant must satisfy the Court of the cumulative test set out in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 namely:

(1)    whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by this Court, and

(2)    whether substantial injustice would result if leave were refused supposing the decision to be wrong.

CONSIDERATION

19    If Mr Fletcher and Ms Pema had any prospect of succeeding on the proposed appeal, although the explanation for the delay is a short one, I would be disposed to grant an extension of time within which to seek leave to appeal. The explanation for the delay is in essence a lack of awareness of the relevant time limits. However, the delay is relatively short, about 10 days, and it is not suggested that the Minister would materially suffer detriment if an extension of time to seek leave to appeal were granted.

20    However, on both the extension of time application and on the leave to appeal application, it is necessary to determine whether the judgment from which leave to appeal is sought is attended by sufficient doubt to warrant it being reconsidered by the Court so that there is merit in the proposed appeal, and whether prejudice or substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong. I am conscious that formulation compounds the separate tests referred to above. That formulation should be understood as a short way of asking whether Mr Fletcher and Ms Pema have any real chance of succeeding on their proposed appeal. If they do not, there will be no injustice to them by refusing the application.

21    In this case, I agree with the submissions of counsel for the Minister that the proposed appeal could not succeed, because there was no utility in the proceeding being pursued in the Federal Magistrates Court in the circumstances, nor in this Court.

22    The grant of constitutional relief setting aside a decision for jurisdictional error is discretionary: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82. The Federal Magistrate exercised his discretion to dismiss the application because the visa had been granted. There is no real prospect of Mr Fletcher and Ms Pema establishing that the exercise of that discretion by the Federal Magistrate was wrong in the particular circumstances. The decision is not attended by sufficient doubt to warrant it being reconsidered by this Court. I do not think it is possible to argue successfully that the decision of the Federal Magistrates Court to award costs in the circumstances in which those costs were awarded involved a discretionary error of the type addressed in House v The King (1936) 55 CLR 499 at 504-505 for the reasons explained by the Federal Magistrate.

23    In addition, I am not satisfied that substantial injustice to Mr Fletcher or Ms Pema would result if leave to appeal were refused, even assuming that the decision of the Federal Magistrate was wrong. That is simply because the visa which was the subject of the decision which was challenged in the Federal Magistrates Court had by then already been granted. The relief which the Federal Magistrates Court might have made, if it had found error, was to remit the matter to the Tribunal to reconsider the application with a view to it determining whether or not to grant the visa. A Carer visa had been already granted to Ms Pema. Mr Fletcher in his submissions has identified the issue of costs and effort expended by him in prosecuting the first application for the visa before the Tribunal and the application for judicial review before the Federal Magistrates Court.

24    As I noted above, Mr Fletcher also complained about the effect upon his health of the decision on the first application. The Federal Magistrates Court had no power to make any order other than to remit the first application to the Tribunal for rehearing. In turn, its power was limited to granting or not granting the visa. The best result for Mr Fletcher and Ms Pema was therefore the grant to her by the Tribunal of a Carer visa. She already had such a visa, albeit from the second application. So, as the Federal Magistrate found, it was futile to proceed with the judicial review application.

25    Despite Mr Fletcher’s obviously genuinely held frustration, the proceedings in the Federal Magistrates Court could not have made orders which in any real way gave him the sort of compensatory orders he apparently seeks. I add that, although Mr Fletcher also clearly feels that the conduct of various officers of the Department and its representatives is in some way conspiratorial, I do not see the slightest evidence to support that.

26    That leads me to the second of the two principal issues. I have decided that the exercise of the Federal Magistrate’s discretion to summarily dismiss the challenge to the Tribunal decision could not be shown to be arguably wrong. In addition, in my view, it cannot be shown that the Tribunal decision itself was arguably wrong. That is because the relevant definitions in the Regulations mean that Mr Fletcher was not eligible to sponsor the first application. Clauses 116.211 and 116.212 of Sch 2 of the Regulations required that Mr Fletcher (as both the sponsor and the person to be cared for) be an Australian relative. He did not meet the definitions in reg 1.03 as an Australian relative. The second application was then sponsored (I was informed on behalf of the Minister) by Ms Lhamo as the spouse of Mr Fletcher so as to come within cl 116.212, so that the second application could be granted.

27    Lest it be thought that I have not considered the material put forward by Mr Fletcher or by Mr Fletcher and Ms Pema filed both with the application and subsequent to it, I indicate that I have considered it. The application for extension of time is itself a lengthy document of some 18 pages. It was accompanied by an affidavit of Mr Fletcher of some 10 pages together with five exhibits which themselves are substantial, and by a further brief affidavit of Mr Fletcher to which was annexed “Exhibit E”. Exhibit “E” is an extensive extraction of material before the Tribunal, and before the Federal Magistrate, and other material including argument, summary and the like. “Exhibit E” also includes towards its end a document entitled “Notice of Appeal” which sets out, I assume, the then proposed grounds of appeal if leave to appeal were in fact granted on this application in accordance with rr 36.01(1) and (2) of the Federal Court Rules 2011 (Cth).

28    The grounds of appeal set out in that document are as follows:

Evidence for the case approaches a half metre in height and yet the focal ground of this appeal is miscarriage of justice in the cover-up of the jurisdictional breach of law pursuant as above. In particular:

(a)    The judgement was based on a legal deductive error in that the partial relief for the applicants entailed in a new visa they obtained in emergency and pain that resulted from the said breach of law was imposed as full relief for visa 013399 thus causing a cover-up of the jurisdictional error.

  (b)    the legal responsibility for The Minister consequent upon the jurisdictional error to provide at his hand the visa that was obtained at the hand of the applicants was dismissed.

  (c)    The claim of the jurisdictional error (in need of correction for integrity of the law and correction of precedent) was dismissed when the jurisdictional error in fact exists.

(e)    The finding constitutes a cover-up of the above jurisdictional error that exists in culmination of a series of errors.

(f)    The finding (13.10(a)) that the proof is un-provable and can’t be prosecuted is false and that proof, (in three ways,) was accomplished in very few minutes before the eyes of Judge Simpson who chose in this case to not recognize nor examine this proof.

29    The orders sought are expressed (apart from costs) in the following terms:

(a)    That the relief of the primary orders in the original application of 26/09/2012 be applied in terms of quashing the decision subject of primary appeal and the correct determination of the jurisdictional error and consequent breach of Migration Law to so (i) meet an applicant’s war injury relief and restore (ii) integrity and (iii) confidence in (iv) The Minister and (v) Australian Migration Law.

 (b)    that the very long list of secondary orders sought receive brief review of each specific one (i.e. instead of them as is, being dismissed in toto prejudicially) and that they, and the establishment of the facts they in the main constitute, be re-assessed for potential relief and if such relief be lawful and within the powers of the Court then it be provided.

30    Subsequently, a further draft notice of appeal was provided. It claims relief of the same character, expressed in seven paragraphs, and somewhat more detailed. It also contains 16 proposed grounds of application, partly reflective of the earlier document and again much more extensive than the earlier document. It is however of the same general character. I do not propose to set it out in detail or to address separately each of its paragraphs.

31    The contentions or assertions raised in those documents fail to appreciate that the grant of constitutional relief setting aside the decision of the Tribunal is a discretionary one. As I have said above, the issue before the Tribunal was whether the visa should have been granted. The orders of the Tribunal from which the review was taken affirmed the refusal to grant the visa. Subsequently, the visa was granted. Had jurisdictional error been found, and had the visa not by then been granted, the appropriate order of the Federal Magistrates Court would have been to set aside the decision of the Tribunal and to remit the matter to the Tribunal for consideration of the visa application according to law. Such a course would have been pointless where the visa had already been granted. That is self-evident. The “secondary orders” which are referred to variously in the documents now before the Court would not have been appropriate. Nor could they properly have been made. The quashing of the decision of the Tribunal would serve no purpose where the visa had been granted.

32    Whilst the application for extension of time and the associated documents to which I refer in various ways and to different extents emphasise or make assertions about justice, the integrity of the Minister, the quality of the Act, the quality of the processes of the Department, and in part at least the proper construction of the Regulations, those matters are not matters about which this Court on an appeal would make findings. It would simply address whether the Federal Magistrate erred in the exercise of his discretion to summarily dismiss the application. It is appropriate to note that, whilst Mr Fletcher no doubt feels strongly about the appropriateness of certain provisions in the Act and the Regulations, and about the way in which the visa application was addressed, those matters are not themselves matters which this Court could or would address on an appeal.

33    Consequently, in my view, the application for an extension of time within which to seek leave to appeal, and if an extension of time were granted, the application for leave to appeal, from the decision of the Federal Magistrates Court and the orders made on 12 April 2013, is refused. Mr Fletcher and Ms Pema should pay the costs of the Minister.

Associate:

Dated:    30 August 2013