FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2014] FCA 955

THE COURT ORDERS THAT:

1.    The applicant's application for an extension of time within which to seek leave to appeal from the decision and orders of the Federal Circuit Court made on 18 February 2014 be dismissed.

2.    The applicant pay the first respondent's costs of and incidental to his application fixed in the sum of $8,530.

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

REASONS FOR JUDGMENT

1    By application filed on 18 March 2014, the applicant seeks an extension of time within which to seek leave to appeal and leave to appeal from the orders made by the Federal Circuit Court of Australia on 18 February 2014. That Court dismissed the applicant’s application for judicial review of a decision of the second respondent pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

2    In my opinion, the application for an extension of time within which to seek leave to appeal should be dismissed.

3    Before proceeding to deal with the merits of that application, it is useful to set out some procedural background. The hearing today proceeded in the absence of the applicant. Originally, this matter was listed before me in Sydney on 8 August 2014. On that day, the applicant appeared and was represented by Mr L Bhatty of Hedges Bhatty Solicitors. On that day, Mr Bhatty sought an adjournment on behalf of the applicant, which I granted, as he had apparently only recently been instructed. However, Mr Bhatty has now ceased to act.

4    No doubt the applicant, who was present on 8 August 2014 and also assisted by an interpreter, understood that the matter had been adjourned to this afternoon to be dealt with by videoconference with the parties to attend in Sydney. No doubt his solicitor on that occasion explained that the matter was adjourned to today. For completeness, the applicant was also made aware of the date and time of today’s hearing by an email of 27 August 2014 sent to him by the solicitor for the first respondent (Minister), which expressly set out the time and date of today’s hearing.

5    When this matter was called on for hearing today, I stood the matter down to have further enquiries made as to the applicant’s whereabouts. I requested that the Minister’s solicitor contact the former solicitor for the applicant, Mr Bhatty. That occurred. Counsel for the Minister, Mr Kaplan, informed me that Mr Bhatty told the Minister’s solicitor that he had made it clear to the applicant that the matter was returning before the court today and apparently had also explained to the applicant the consequence of any failure to attend.

6    Counsel suggested that I could deal with the applicant’s application by exercising my power to summarily dismiss the application by reason of non-attendance under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) (Federal Court Rules). I have considered whether I should exercise that summary power or proceed now to deal with the merits of the applicant’s extension of time application in his absence.

7    I decline to exercise that summary power. This matter was originally before the Court on 8 August 2014, and there had already been one indulgence given to the applicant by reason of the matter being adjourned. Also, the applicant has had the benefit of the Minister’s written submissions on the merits of the matter and had adequate time to address those matters if he chose to do so. In my view it is appropriate to now proceed to deal with the merits of the applicant’s extension of time application.

Application for partner visa(s)

8    The applicant is a citizen of India who arrived in Australia on 27 February 2007 on a Subclass 573 (Higher Education Sector) visa. He was granted a further student visa on 14 September 2009 which ceased on 4 April 2010.

9    The applicant apparently met an Australian citizen, a Ms Louise Orlando (Ms Orlando), around July 2009 at the St Marys League Club, NSW. She had two children who lived with her in Whalan, NSW. The applicant and Ms Orlando started a relationship and married on 29 March 2010.

10    On 31 March 2010, the applicant made a combined application for a Partner (Temporary) (Class UK) Subclass 820 (Partner) visa (Subclass 820 visa) and a Partner (Residence) (Class BS) Subclass 801 (Partner) visa (Subclass 801 visa) (partner visas). The applicant made such an application based on his relationship with Ms Orlando. In support of his application, the applicant provided, inter alia, copies of his marriage certificate, evidence of citizenship, photographs, bank account details and a statement explaining why he was not living in the same home as Ms Orlando.

11    On 26 July 2011, a delegate of the Minister made a decision to refuse to grant the partner visas. Relevantly, s 5F of the Migration Act 1958 (Cth) (the Act) provides:

5F    Spouse

(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.

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

The delegate found that the applicant was not Ms Orlando’s “spouse” for the purposes of s 5F of the Act, as they were not in a married relationship as defined in s 5F(2). Consequently, the applicant could not satisfy cl 820.211(2) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations), which required that the applicant be the “spouse” of a person who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. He was not granted a Subclass 820 visa. As the applicant did not hold a Subclass 820 visa, he could not be granted a Subclass 801 visa (cl 801.221(2)(a) of Sch 2 to the Regulations).

The Tribunal proceedings

12    The applicant sought review of the delegate’s decision by filing an application with the Migration Review Tribunal (the Tribunal) on 30 August 2011. The applicant was represented by a migration agent.

13    Apparently almost two years later, on 22 August 2013, the Tribunal sent a letter to the applicant (through the migration agent) to advise him that it had considered the material before it, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant pursuant to s 360(1) of the Act to appear before it on 3 October 2013 to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision. The letter also advised the applicant that “if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice”.

14    On 25 September 2013, an officer within the Tribunal registry contacted the applicant’s migration agent’s office and left a message for the applicant to provide a response to the 22 August 2013 letter. The Tribunal did not receive a response to the hearing invitation. More importantly, the applicant did not appear before the Tribunal on 3 October 2013.

15    On 3 October 2013, and in light of the applicant’s absence, the Tribunal exercised its discretion under s 362B of the Act to make a decision on the review, without taking any further action to enable him to appear before it. As the Tribunal stated at [7]:

On 22 August 2013 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 October 2013. The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 25 September 2013 a Tribunal case officer contacted the advisor’s office and was told that he was not in the office. A message was left for him to provide a response to the hearing invitation. No response was received by the Tribunal. The review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

16    The Tribunal found that the applicant and Ms Orlando were married to each other under a marriage that was valid for the purposes of the Act as required by s 5F(2)(a). The Tribunal further found that the applicant satisfied the requirements of cl 820.211(1)(a) as he was not the holder of a Subclass 771 (Transit) visa. But the Tribunal found that the applicant did not meet the requirements of any of cl 820.211(2)-(9) and, therefore, did not satisfy cl 820.211(1)(b). In essence, ss 5F(2)(b), (c) and (d) had not been satisfied.

17    As to cl 820.211(2), the Tribunal noted that it wrote to the applicant and invited him to attend a hearing because “it was unable to make a favourable decision on the information before it” (at [20]). The Tribunal also noted that it had a copy of the delegate’s decision record which “put the applicant on notice as to the deficiencies in his application.”

18    In circumstances where the applicant did not provide any further evidence relating to his application and where the Tribunal said that it required further evidence before it could find that the applicant met the requirements for the grant of a Subclass 820 visa, the Tribunal considered that it had “no option but to affirm the delegate’s decision” (at [21]). The Tribunal was not satisfied that the applicant was Ms Orlando’s “spouse” within the meaning of s 5F of the Act and, therefore, did not meet the requirements of cl 820.211(2). As the applicant was not the holder of a Subclass 820 visa, the Tribunal found that he could not meet the criteria for the grant of a Subclass 801 visa.

19    On 3 October 2013, the Tribunal affirmed the delegate’s decision. At [23]-[24] it stated:

23.    The Tribunal finds that the applicant does not meet cl.820.211(2). As the applicant does not satisfy the other subclauses of 820.211, the applicant does not meet cl.820.211(1) and cannot be granted a Subclass 820 visa. It follows that the applicant does not meet the criteria for a Class BS visa, which requires the applicant to be the holder of a Subclass 820 visa.

24.    The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, nor a Partner (Residence) (Class BS) visa.

Proceedings before the Federal Circuit Court

20    On 29 October 2013, the applicant sought judicial review of the Tribunal’s decision by application filed in the Federal Circuit Court. The application for judicial review raised the following three grounds:

1.    I did not get any letter from the Migration Review Tribunal asking to submit any information in writing. Migration Review Tribunal should have given me this opportunity.

2.    I did not get any letter from the Migration Review Tribunal about the hearing, even if the Tribunal sent a letter informing my Agent, in case of no reply from the Agent to this letter the Tribunal should have given me a chance to submit oral or written information. The Tribunal failed to inform me that my attending of hearing was very important for my case. It did not tell me that failure to not to attend the hearing will result in refusal of my review application. The Tribunal did not tell me that I could have sought additional time to submit additional information.

3.    The Tribunal member did not consider the information which was in my file such as the marriage certificate and other documents.

21    The application was supported by an affidavit sworn by the applicant on 29 October 2013, annexing a copy of the Tribunal’s decision. The applicant deposed that he was misguided by his “lawyer” and had not been able to contact his agent in the last three weeks.

22    The first return date for the application was 18 February 2014, before Judge Emmett. On that day, the Minister submitted that the application did not disclose an arguable case and that consequently a show cause hearing under r 44.12 of the FCC Rules should be held. The primary judge then indicated that she would immediately convene a show cause hearing and so proceeded (see r 44.11(a) of the FCC Rules).

23    The primary judge observed that the applicant’s grounds of review were “wholly unparticularised” and “not supported by evidence” (at [5]). The primary judge said that the applicant admitted that he had a migration agent, at least in the context of the Tribunal proceedings, and that that agent was the applicant’s authorised recipient. The primary judge noted that s 379A of the Act “requires correspondences to the applicant to be sent to that specified address” (at [6]). The provision that imposes this obligation is rather s 379G(1). The primary judge noted that the applicant “submitted that his migration agent did not contact him,” but held that “the grounds of the application do not raise an arguable case of jurisdictional error” on the part of the Tribunal (at [6]). I should say at this point that the applicant did not advance any evidence that his migration agent had not received the requisite communication from the Tribunal or that the Tribunal had not forwarded the requisite communication to the correct address.

24    The primary judge held that the applicant did not “provide any other complaint arguable of demonstrative jurisdictional error” on the part of the Tribunal (at [7]) and that the application “does not raise an arguable case for the relief claimed” (at [9]).

25    Accordingly, on 18 February 2014, the primary judge ordered that the proceeding be dismissed pursuant to r 44.12(1)(a) of the FCC Rules. She also ordered that the applicant pay the Minister’s costs, which were fixed.

Proceedings in this Court

26    The applicant requires leave to appeal from the judgment of the Federal Circuit Court. The primary judge’s decision was interlocutory for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (see SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [15[).

27    The applicant is out of time in seeking leave to appeal.

28    Rule 35.13(a) of the Federal Court Rules requires an application for leave to appeal to be filed “within 14 days after the date on which the judgment was pronounced or the order was made.” Since the primary judge’s orders were made on 18 February 2014, the applicant was required to seek leave to appeal on or before 4 March 2014. His application for leave to appeal was filed two weeks late. Accordingly, he requires an extension of time.

29    The applicant’s application for an extension of time filed on 18 March 2014 is supported by an affidavit sworn by the applicant on the same day, which states:

I want to lodge my appeal in the Federal court of Australia.

The Order of Judge Emmett was given on 18.2.2014 but it was sent to me on 6th March 2014.

I received the decision of Federal Circuit Court after 6 March 2014.

I was unable to lodge my appeal in time.

If I had received the decision of the Federal Circuit Court in time I would have applied my appeal in time.

I request that I should be given the extension of time and be allowed to apply my appeal.

30    The grounds in support of the applicant’s application for leave to appeal are stated as:

1.    Judge Emmett has not considered the evidences, which were provided as evidences in my file.

2.    Judge Emmett did not consider that MRT did not send any information to me.

3.    I raised an arguable case but Judge Emmett dismissed my application.

31    The applicant also filed a draft notice of appeal. It raised two grounds:

1.    Judge Emmett has not considered the evidences which were provided as evidences in my file.

2.    My Migration Agent did not inform me of any correspondence.

32    The principles governing an application for an extension of time within which to seek leave to appeal are well established. Consideration needs to be given to the length of the delay, the explanation for the delay, any prejudice to the other parties and the merits of the proposed appeal (Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564 at [5]).

33    The principles that govern leave to appeal in the event that an extension of time is granted are also well established. An applicant must show that in all of the circumstances the decision in respect of which leave to appeal is sought is attended by sufficient doubt such as to warrant the grant of leave, and that substantial injustice would result if leave were refused, supposing the decision below to be wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400).

34    Generally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision of the Court below is affected by an appealable error and a grant of leave is necessary to remedy a substantial injustice (Re CSR Ltd (2010) 183 FCR 358 at [5]).

35    Leave will be more readily granted where an interlocutory decision determines a substantive right, as distinct from a mere matter of practice and procedure (SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 (SZTGS) at [20]).

36    Let me deal with a separate aspect. The primary judge’s decision dismissing the application was because she was not satisfied that the applicant had raised an arguable case for the relief sought.

37    An appeal against a finding of non-satisfaction as to a matter is subject to similar principles that apply to an appeal from a discretionary decision (SZTGS at [23]-[24]).

38    Further, the primary judge’s decision to dismiss the application after not being relevantly satisfied was itself an exercise of discretionary power under r 44.12(1)(a), thereby requiring identification of appealable error of the type discussed in House v The King (1936) 55 CLR 499 at 504-505 (see also SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 at [21]).

Extension of time application

39    In this case, the delay of two weeks is not excessive. Moreover, in my opinion, the applicant’s explanation for the delay is understandable and adequate.

40    The Minister argued otherwise. The Minister contended that the applicant appeared before the primary judge on 18 February 2014 with the assistance of an interpreter and that the primary judge’s reasons for judgment were not lengthy. The Minister submitted that it could be assumed that the applicant understood the effect of her Honour’s decision. Although the Minister accepted that the primary judge’s written reasons were not provided to the applicant until 6 March 2014, the Minister contended that the applicant did not require a hardcopy of the judgment in order to bring his application for leave to appeal, especially given the general nature of the grounds in both that document and in his draft notice of appeal.

41    I do not accept the Minister’s contentions. In context and given the position of the applicant, in my view the delay was understandable and his explanation given was adequate.

42    Further, although the applicant has not given any express reason for the delay between 6 and 18 March 2014, I am prepared to assume that it flowed from the time taken to review and consider the primary judge’s written reasons and to prepare his material; alternatively, he may have thought at the time that the 14 day timeframe ran from 6 March 2014.

43    Further, there is no real prejudice to the Minister by reason of the applicant’s delay. But of course that is not sufficient to warrant the grant of any extension of time (SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 at [67]).

44    The real difficulty for the applicant is that the proposed appeal grounds lack merit. The primary judge’s decision is not attended with any sufficient doubt such as to warrant the grant of leave to appeal. Where a proposed appeal has no reasonable prospects of success, an extension of time may be refused even if it is for a short period (Wei v Minister for Immigration and Border Protection [2014] FCA 539 at [22]).

45    It is appropriate to address each proposed ground of appeal in turn.

Proposed Ground 1

46    Ground 1 in the application for leave to appeal and in the proposed notice of appeal are couched in similar terms, but no arguable error in the primary judge’s approach or exercise of discretion is established. Nothing in her Honour’s reasons suggests that she did not consider the material that was before her, namely, the applicant’s application for judicial review and his supporting affidavit, which attached a copy of the Tribunal’s reasons for decision.

47    If, perhaps, the applicant contends that her Honour was not permitted to make an order under r 44.12(1)(a) prior to any court book being filed and served, that contention should not be accepted. The Federal Circuit Court is entitled to deal with and dismiss applications pursuant to r 44.12(1)(a) without the benefit of a court book. So much may be inferred from r 44.11(a).

48    Further, if the applicant wished to place additional evidence before the Court, he was always free to do so.

49    There is no merit in ground 1.

Proposed Ground 2

50    Ground 2 in the application for leave to appeal and in the proposed notice of appeal may be considered together.

51    Before the primary judge, the applicant confirmed that he was represented by a migration agent before the Tribunal and that he had nominated that agent as the person to whom the Tribunal should send correspondence. Accordingly, the migration agent was the applicant’s authorised recipient for the purposes of s 379G(1)(b) of the Act. That provision required the Tribunal to send documents in connection with the review to the migration agent (s 379G(1)). In doing so, the Tribunal was taken to have given those documents to the applicant (s 379G(2)). Moreover, the migration agent was not to be merely an additional receipient, but “the authorised recipient, instead of the applicant” (s 379G(1)).

52    On 22 August 2013, the Tribunal sent a hearing invitation to the applicant’s migration agent (see its reasons at [7]). The hearing was scheduled to take place on 3 October 2013. The method of communication used by the Tribunal is not identified in its reasons for decision. Further, a copy of the hearing invitation was not in evidence before the primary judge. But nevertheless, no arguable error of the primary judge is established in this context. There is no evidence that the hearing invitation was not sent by one of the accepted means of communication. Alternatively expressed, the applicant in the proceedings before the primary judge adduced no evidence that the relevant communication had not been sent to, or had not been received by, the migration agent or that an authorised mode of communication had not been followed.

53    The primary judge was entitled to proceed on the presumption that all conditions necessary for the Tribunal to exercise its power to proceed to carry out the review under s 362B(1) of the Act, in the circumstances of the applicant’s non-attendance, had been satisfied. Section 362B provides:

362B     Failure of applicant to appear before Tribunal

(1)    If the applicant:

(a)    is invited under section 360 to appear before the Tribunal; and

(b)    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;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

54    In terms of the conditions that would need to be satisfied in order for there to be a decision made by the Tribunal relying upon s 362B, reference should be made to ss 360 and 360A, which provide:

360    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 359C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

360A    Notice of invitation to appear

(1)    If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)    The notice must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(4)    The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(5)    The notice must contain a statement of the effect of section 362B.

55    There are two pre-conditions in s 362B(1). There is no doubt that s 362B(1)(b) was satisfied. The question is whether her Honour was entitled to proceed on the basis that s 362B(1)(a) had been satisfied. In terms of satisfaction of s 360(1) in general, the Tribunal at [7] had stated that a hearing invitation had been given. In terms of the precise elements of s 360A, compliance with s 360A(1) is confirmed by the Tribunal at [7]. Further, compliance with s 360A(5) is confirmed by the Tribunal at [7] in substance (“The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice”). As for the notice period referred to in s 360A(4), the timeframe between 22 August 2013 and 3 October 2013 exceeded the applicable prescribed 14 days (reg 4.21(4) of the Regulations).

56    There was no direct evidence or reference in the Tribunal’s reasons, however, as to the precise mode of communication under s 379A. But in my view, the observations of McHugh JA (as he then was) in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 are apposite:

“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”

His Honour’s observations illuminate the well-known maxim omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium and have been applied, for example, in Minister for Home Affairs v Tervonen (2008) 166 FCR 91 at [69] and Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 at [261]. Her Honour was entitled to proceed on the basis that s 379A had been satisfied. Moreover, receipt by the migration agent is then deemed to have occurred by reason of the operation of s 379C. Further, the fact that the migration agent may not have informed the applicant of the receipt of any correspondence from the Tribunal does not alter the effect of s 379C. And nor was there any evidence before her Honour or assertion made to the effect that the migration agent had not received the invitation.

57    Further, and relatedly, the Minister was not required to adduce positive evidence demonstrating that each of the elements of ss 360A and 379A had been complied with in terms of the content and mode of communication from the Tribunal to the applicant. There was no burden upon the Minister to demonstrate such facts (see the observations of Gummow J in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]-[69]). The primary judge’s reasons do not demonstrate any error. As I say, in circumstances where the applicant had been invited under s 360(1) to appear before the Tribunal but did not appear, the Tribunal was entitled pursuant to s 362B(1) to make a decision on the review without taking any further action to enable the applicant to appear before it. It was under no obligation to communicate with the applicant or his migration agent to enquire as to the reasons for his non-appearance or to ensure that he appeared. In summary, there is no arguable error demonstrated in relation to the primary judge’s consideration of this issue.

58    For completeness, I did enquire of the Minister on 8 August 2014 as to what precise evidence he had concerning the mode of communication of the hearing invitation to the migration agent. The Minister’s counsel informed me that his instructor had a copy of the invitation, which had been obtained from the Tribunal, showing that it was sent by fax to the last fax number provided by the applicant to the Tribunal. That material was not in evidence before her Honour and I did not permit its tender before me.

Proposed Ground 3

59    Ground 3 in the application for leave to appeal asserts that the applicant raised an arguable case before the primary judge, but that his application was dismissed. This ground does not appear to add anything of substance to the other grounds in the application for leave to appeal or in the draft notice of appeal. But given the nebulous form in which it is expressed, I should state the following.

60    There was no evidence before the primary judge to suggest that the Tribunal did not consider the information in his file such as his marriage certificate and other documents and did not otherwise properly carry out its task. On the contrary, the Tribunal found that the applicant and Ms Orlando were married under a marriage that was valid for the purposes of the Act and, therefore, satisfied the requirements of s 5F(2)(a). But there was insufficient evidence before the Tribunal for it to be satisfied that his relationship with Ms Orlando satisfied the requirements of ss 5F(2)(b), (c) and (d). As far as I can glean from the material before me, that deficiency has never sought to be rectified.

61    The Tribunal said in the hearing invitation that on the material before it, it was unable to make a favourable decision. That the delegate’s decision would be affirmed was the inevitable consequence of the applicant’s failure to provide to the Tribunal any further evidence or submissions to support his case (cf NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]).

Conclusion

62    In my view, none of the proposed grounds of appeal demonstrate any arguable error. Accordingly, any grant of an extension of time would be futile. The applicant’s application for an extension of time is refused.

Associate:

Dated: 3 September 2014