FEDERAL COURT OF AUSTRALIA

Ortiz v Minister for Immigration and Border Protection [2015] FCA 427

THE COURT ORDERS THAT:

1.    The application for leave to appeal to this Court be dismissed.

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

REASONS FOR JUDGMENT

1    The Federal Circuit Court (the FCC) dismissed the applicant’s application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Migration Review Tribunal (the MRT) on 23 August 2012: Ortiz v Minister for Immigration and Border Protection [2014] FCCA 2994. The MRT had affirmed the decision of a delegate of the Minister to refuse the grant of a Partner (Temporary) (Class UK) visa.

2    The FCC Judge dismissed the application pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (the FCC Rules). That rule permits the FCC to dismiss proceedings if it is satisfied that an applicant has no reasonable prospect of successfully prosecuting the proceeding.

3    However, the FCC Judge also addressed the merits of the application in case he was wrong in concluding that the applicant had no reasonable prospects of success. He found that none of the grounds in the application for judicial review had any merit. He also considered that the application for judicial review was futile in any event.

4    The applicant had legal representation at the initial stages of the proceedings in the FCC. However, after a decision of the Full Court of the Family Court to which I will refer shortly, his legal representation ceased.

5    The applicant, who continues to be unrepresented, now seeks leave to appeal against the judgment of the FCC and an extension of time in which to do so.

6    Section 24(1A) of the Federal Court Act 1976 (Cth) has the effect that an appeal may be brought from an interlocutory judgment of the FCC only with the leave of this Court. It has been accepted that an order of dismissal under r 13.10(a) is interlocutory in nature: SZDEK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 577; Applicant S 1494/2003 v Minister for Immigration and Citizenship [2008] FCA 286; (2008) 166 FCR 474 at [4]-[23]; Fletcher v Minister for Immigration and Citizenship [2013] FCA 874 at [14], [16]. Accordingly the applicant does require leave to appeal against the FCC judgment.

7    However, the applicant is under a misapprehension in thinking that he requires an extension of time. The FCC dismissed his application on 23 December 2014. Rule 35.13 of the Federal Court Rules 2011 requires that an application for leave to appeal against a judgment be brought within 14 days of the judgment. However, r 1.61 has the effect that the days in the period between 24 December and the following 14 January are not to be counted. This means that the applicant had until 28 January 2015 to file the present application. As he filed his application on 28 January, he was within time. Counsel for the Minister accepted, quite properly, that this was so.

8    Accordingly, the only issue for the Court presently is whether the applicant should be granted leave to appeal. It is not the hearing of the appeal itself.

9    At the commencement of the hearing, the applicant applied for an adjournment: first, because of the death on 18 April 2015 of a son of Ms Stark, with whom he has been in a de facto relationship since January 2012; secondly, because of his own state of health; and, thirdly, because he sought the referral to a Full Bench of his application for leave to appeal.

10    I refused each of these applications for reasons which I gave at the time and will not repeat. I add, however, that it was not evident during the submissions in relation to the adjournment application or on the substantive application that the applicant’s ability to present his case was impaired by reason of ill health or by the recent bereavement.

11    On an application for leave to appeal in a case such at the present, the Court generally considers two matters: whether the judgment of the FCC is attended by sufficient doubt to warrant it being reconsidered on appeal; and whether substantial injustice will result if leave is refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. These tests are not to be applied inflexibly: Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [19]; Alcock v Commonwealth of Australia [2012] FCA 870 at [37]-[48].

12    The affidavit accompanying the applicant’s application contains the grounds on which he seeks leave:

1.    The order manifests jurisdictional error because, contrary to the provisions of the Family Law Act 1976 relating to children and the Convention on the Rights of the Children [to] which Australia is signatory, the effect of the order is to effectively deprive the applicant of his current Australian status allowing him to continue his right of audience in and to pursue to finalisation the pending proceedings in the Family Court of Australia seeking the application of the rights of my children to have a meaningful relationship with both of their parents and more.

2.    The Court unwittingly [has] disregarded and deprived the children of their rights and freedoms to know their biological father, extended families, and their heritages without any substantiated reasonable excuse of facts.

3.    [The Court failed] to realise the purpose of the audience the applicant requested after his legal representation terminated, the errors arising from such are particulars that I am unable to produce in my unconducive medical circumstances now; that being the reason for this application.

13    The applicant also annexed a medical certificate from a general practitioner to his affidavit. The doctor certified that he had examined the applicant of 12 January 2015 and continued:

He is suffering from a significant anxiety and depression, and is needing again referral to psychologist Renier Erasmus for professional help re his distress re loss of access to his two girls, 6 and 8, and his series of battles to obtain a family visa, and stay in Australia while his children are growing up.

Hopefully he can be granted an appeal to the Federal Court on this matter.

I have seen him over the last 3 years on these matters, and he’s been steadfastly determined to be where [his] growing children are living.

14    In order to understand these grounds, it is necessary to set out some background.

Background

15    The applicant is a Spanish national who first came to Australia in November 2004. On 9 November 2006, he applied for a Partner (Temporary) (Class UK) (Subclass 820) visa. The application was made on the basis that the applicant was the de facto partner of a Ms Andrews, an Australian citizen. Ms Andrews was the “sponsoring spouse”.

16    Clause 820.1 in Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) as then in force governed the application. That clause contained criteria which had to be satisfied at the time of making the application (subcl 820.21) and criteria to be satisfied at the time of the decision of the Minister or the Minister’s delegate (subcl 820.22). The applicant satisfied subcl 820.21 because (relevantly) Ms Andrews was an Australian citizen.

17    However, before the Minister’s delegate had made a decision on the application, the relationship between the applicant and Ms Andrews ended. This meant that the applicant then had to meet the requirements of subcl 820.221 of the Regulations as then in force. The applicant relied upon subcl 820.221(3)(b)(ii), which provides:

(ii)    the applicant:

(A)    has custody or joint custody of, or access to; or

(B)    has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring spouse:

(C)    has been granted joint custody or access by a court; or

(D)    has a residence order or contact order made under the Family Law Act 1975; or

(E)    has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

In effect, subcl (b)(ii) required that the applicant and his sponsoring spouse have shared rights and obligations in respect of a child of the sponsoring spouse. This meant that the applicant had to have either a residence order or a contact order made under the Family Law Act 1975 (Cth) in respect of a particular child, or have custody or joint custody of, or access to, a particular child, being a child in respect of whom the sponsoring spouse has obtained particular forms of orders from a court.

18    The applicant sought to satisfy that requirement by showing that Ms Andrews had given birth to a child whom he had fathered and by reference to s 61C(1) of the Family Law Act.

19    Section 61C provides as follows:

61C Each parent has parental responsibility (subject to court orders)

(1)    Each of the parents of a child who is not 18 has parental responsibility for the child.

…

(2)    Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

(3)    Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

…

The applicant relied in particular on subss (1) and (2).

20    The Minister’s delegate rejected the applicant’s application and that decision was affirmed by the MRT, it not being satisfied that the applicant was the child’s father. An application for judicial review in the then Federal Magistrates Court of the MRT decision was also unsuccessful but, on appeal, this Court on 22 December 2011 set aside the MRT decision and remitted the matter for further hearing by the MRT: Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498; (2011) 224 FCR 583. It is the MRT’s decision on 23 August 2012 on that remitted application which gave rise to the application to the FCC and, in turn, to the present application for leave to appeal.

21    The MRT affirmed the original decision of the Minister’s delegate principally because it considered that any parental rights or responsibilities which the applicant had as the child’s father had been displaced by an order made by the Family Court on 5 April 2012. It noted that s 61C(3) states expressly that subs (1), which provides for parental responsibility, has effect subject to any order of a court for the time being in force.

22    The MRT decision in that respect was well based having regard to the terms of the Family Court order of 5 April 2012 which provided (relevantly):

1.    All previous parenting orders in relation to [the child] are vacated.

2.    [Ms Andrews] [the mother] have sole parental responsibility in respect of the child, including the exclusive parental responsibility to determine where, within the Commonwealth of Australia, the child resides.

3.    The child live with the mother.

4.    [The applicant] [the father] and his family may communicate with the child as follows:

(a)    by cards and letters addressed to the child care of the mother;

(b)    the mother shall be responsible for ensuring that, having regard to the age and maturity of the child, no inappropriate written material from the father is to be given to her;

(c)    the cards and letters may be sent at Christmas, Easter, Father’s Day, the father’s birthday and the child’s birthday;

(d)    …

5.    Other than the communication referred to above, or otherwise agreed to in writing between the parties, the father shall not spend time with the child or otherwise communicate with the child.

6.    Except as specifically provided in these orders, or as otherwise agreed in writing between the parties, the father be and is restrained from approaching or meeting the child, communicating or spending time with the child or going to the home or school of the child or to the mother’s place of employment.

Orders 1 and 2 of these orders are particularly pertinent.

23    In May 2012, the applicant instituted an appeal to the Full Court of the Family Court against this order. That appeal was dismissed on 6 March 2014, that is, after the MRT’s decision on 23 August 2012. The FCC Judge recorded that the applicant had not instituted any application for special leave to the High Court against the decision of the Full Family Court.

The decision of the FCC Judge

24    After recounting the history just summarised and some concessions made by counsel who appeared for the applicant at the preliminary hearings in the FCC, the FCC Judge said:

[26]    It seems to be that the applicant’s application must be dismissed. The order of the Family Court of Australia made in April 2012 is still operative. That necessarily means that the applicant does not come within the exception contained in cl 820.221(3)(b)(ii) of the Regulations.

[27]    ….

[28]    Having regard to the concessions made by the applicant and his counsel … and noting that the Full Court of the Family Court of Australia dismissed the applicant’s appeal and noting further that the [applicant] did not seek special leave to appeal to the High Court of Australia leads me to conclude that the applicant has reached the end of the road in relation to this application. The applicant and his counsel were right to concede that this application would have to be dismissed in the event that the applicant’s appeal to the Full Court of the Family Court of Australia was unsuccessful. His appeal to that Court was, indeed, unsuccessful. That means that paragraph 4 of the order made by the Family Court of Australia in April 2012 still stands. Therefore the applicant does not come within one of the exceptions recognised by cl 820.221 of the Sch 2 of the Migration Regulations 1994 (Cth). The application must be dismissed.

25    The FCC Judge went on to note that the application could be dismissed pursuant to r 13.10(a) of the FCC Rules on the basis that the applicant had no reasonable prospect of prosecuting his application successfully.

26    In my respectful opinion, this was not a correct application of r 13.10(a). The FCC Judge appears to have considered that it was enlivened because the applicant had no reasonable prospect of showing an entitlement to the Partner visa which he sought. However, r 13.10(a) was to be applied having regard to the applicant’s prospects of success in establishing any of the grounds of judicial review of the MRT decision on which he relied.

27    However, this misapprehension by the FCC Judge is of no consequence because, as already noted, the FCC Judge did go on to consider the grounds of judicial review advanced by the applicant and found that they lacked merit.

28    The FCC Judge also held, in the further alternative, that even if he was wrong in his assessment of the grounds of review, there was no point to any remittal of the matter to the MRT because it was plain, in the light of the order of the Family Court of 5 April 2012, that the applicant could not bring himself within subcl 820.221(3)(b)(ii) of the Regulations. That being so, the FCC Judge considered that the application for the visa on the ground that Ms Andrews was the sponsoring spouse was bound to fail and that in this circumstance, the application for judicial review was futile. In that circumstance, the FCC Judge said that the discretion to refuse relief should be exercised: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [28]-[29].

The application for judicial review is futile

29    In my opinion, the conclusion of the FCC Judge as to the futility of the application before him was correct.

30     The applicant could not satisfy the criteria required to be satisfied at the time of the MRT decision on 23 August 2012 because, at that time, he no longer had any shared rights and obligations of the requisite kind in respect of the child of Ms Andrews. Such rights and obligations as he may have had arising from s 61C had been removed by the Family Court order of 5 April 2012.

31    The applicant sought to avoid this effect of the Family Court order on his visa application by a number of submissions. He had submitted in the FCC that the MRT had erred by not deferring its decision until after the outcome of his appeal to the Full Court of the Family Court was known. In fact, his then counsel had submitted that the fate of the appeal to the Full Court of the Family Court would be determinative of the application for judicial review as, if the appeal succeeded, the position would be that the MRT had failed to have regard to a relevant matter and if it failed, it was inevitable that the application for judicial review in the FCC would also fail.

32    Counsel for the Minister had disputed the first of these propositions. It is not necessary to consider the correctness of the position because, as has been seen, the appeal to the Full Court in the Family Court failed.

33    I observe, however, it was not necessary for the MRT to defer making a decision until after the fate of the appeal in the Family Court was known. The judgment of the Family Court on 5 April 2012 was a judgment of that Court and was binding. Although it was possible that it may be set aside on appeal, that did not mean that it was to be regarded as provisional, contingent, or operating only subject to confirmation on appeal. The MRT was entitled to proceed on that basis.

34    Further, the decision of the MRT to proceed to a decision on the information then available, rather than to defer consideration pending the determination of the appeal to the Full Court of the Family Court, was of a discretionary kind. The exercise of that discretion cannot be said to give rise to jurisdictional error.

35    Next, the applicant contended that the MRT had erred by failing to have regard to the change of circumstance which he had notified to the Department on 23 September 2008. This was to the effect that he was then in a relationship with a Ms De Boer and had fathered a child of Ms De Boer born in July 2008. The submission seemed to be that the MRT should have treated the notification to the Department of 23 September 2008 as an amendment to his application and that it should, in any event, have determined the application by reference to this change of circumstance.

36    There are two reasons why this submission cannot succeed. First, it was Ms Andrews, and not Ms De Boer, who was the “sponsoring spouse” on the applicant’s visa application which was the subject of the MRT review. Secondly, as already noted, subcl 820.221(3)(b)(ii) requires that the applicant have shared rights and obligations in respect of a child of the sponsoring spouse. Any rights and obligations which the applicant had in respect of the child of Ms De Boer could not satisfy that requirement.

37    Counsel for the Minister also submitted that the MRT did not have authority, in any event, to consider the grant of a partner visa on the basis of the applicant’s relationship with Ms De Boer and his fatherhood of her child. That was because the authority of the MRT is only to review “MRT-reviewable decisions” of the Minister (or a delegate of the Minister) and neither the Minister nor a delegate had considered an application in which Ms De Boer was the sponsoring spouse, because no such application had been made.

38    Counsel relied on the decision of Finkelstein J in Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217; (1999) 90 FCR 120. In that case, Finkelstein J reviewed the statutory provisions governing the authority of the MRT in a context in which the MRT had considered that the applicant may satisfy the criteria for the grant of a different visa from that for which application had been made. Finkelstein J held that the MRT had been in error in doing so, saying:

[28]    But, even if the Minister is able to deal with a request for a substitute visa as a valid application for a visa, the tribunal does not have the power to do so. The function of the tribunal is to review a decision made by either the Minister (or his delegate) or a review officer and it is not to determine an original application. By acceding to a request to consider the grant of a visa not specified in the original application and not the subject of a determination by the original decision-maker, the tribunal would be exercising the functions of an original decision-maker (a power which it does not have) and not the functions of a reviewing body.

39    The question in the case is different from that considered in Hayman. It is whether it was open to the MRT to set aside the decision of the Minister’s delegate and to substitute a new decision granting the same visa as sought by the applicant but on a different basis from that considered by the Minister’s delegate. The resolution of that question would require consideration of the scope of s 349(1) of the Migration Act, which provides:

(1)    The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

40    In my opinion, it is inappropriate to embark upon that consideration in this case. The Court has not had the benefit of full argument from counsel on both sides and, in any event, the matter is hypothetical because Ms De Boer has not lodged a sponsoring application nor given a sponsorship undertaking. It is apparent that she is unlikely to do so. Documents provided by the applicant in support of his application for leave to appeal indicate not only that he is estranged from Ms De Boer, but also that she has made allegations of misconduct of serious kinds against him.

41    Further still, the document provided by the applicant to the Department on 23 September 2008 cannot reasonably be construed as an application (or a request) to amend the original visa application. The document, in the form of Form 1022 made by the Minister pursuant to reg 1.18 of the Regulations, is entitled “Notification of Changes in Circumstances” and indicates that it is a notification under s 104 of the Migration Act. Section 104(1) provides:

(1)    If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

The document is not in the form of an application to amend, and cannot reasonably be understood as a request by the applicant for his application to be considered on an alternate basis.

42    The applicant’s provision of the form on 23 September 2008 appears to have been elicited by letters to him from the Department on 12 February 2007, 9 August 2007 and 27 November 2007. In those letters, the Department informed the applicant that it had received information that his relationship with his sponsoring spouse (Ms Andrews) had ended and reminded him of his obligation to notify the Department of changes in his personal circumstances. As such, the document provided on 23 September 2008 cannot reasonably be regarded as an application or request to have the original application determined on a different basis.

43    In his submissions in reply, the applicant said that he had not been informed that the document provided on 23 September 2008 would not be regarded as an application to amend and had not been informed that such an application should be made. It is not necessary to consider the merit of that submission (although I note that it may not be consistent with the content of written and oral communications to the applicant on 17 and 18 February 2009 respectively). It is sufficient to record that any failure by the Department in that respect cannot give rise to jurisdictional error by the MRT.

44    For these reasons, the conclusion that the application for judicial review was futile was correct. It is inevitable that the underlying application, even if remitted to the MRT, would have to be dismissed.

45    This is an important finding as it means that the applicant cannot satisfy the second limb of the Décor Corporation test outlined earlier. This means in turn that the Court can address the grounds on which the applicant seeks leave to appeal more briefly than may otherwise have been appropriate.

46    I observe for completeness that there was no suggestion that the applicant has sought to rely at any stage of the proceedings in the MRT on his relationship with his current partner, Ms Stark.

The grounds of the application for leave to appeal

47    The grounds in the applicant’s affidavit accompanying the application for leave to appeal are set out above. They have little relationship to the grounds of the judicial review application in the FCC. Accordingly, the applicant requires leave to advance these grounds: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. However, given that the applicant is unrepresented, it is convenient to proceed directly to a consideration of the substantive merits of each ground.

Ground One

48    The applicant’s first ground raises the effect of the MRT decision. The applicant asserts that he is effectively deprived of his capacity to pursue proceedings in the Family Court seeking rights in relation to his children. The consequences or effect of a decision do not usually give rise to a ground of judicial review, which is concerned generally with the question of whether the impugned administrative decision is affected by jurisdictional error. The High Court in Craig v State of South Australia (1995) 184 CLR 163 at 179 described what is meant by “jurisdictional error” in the following passage:

… If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

49    Accordingly, the question for the FCC in the present case was whether the MRT had acted lawfully in the manner in which it had gone about its task. As Allsop J (as his Honour then was) noted in SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at [6] the task of the FCC (and this Court) “is to ascertain whether the Tribunal in doing its task, obeyed the legal framework within which it is supposed to work”. Allsop J continued:

For instance, it must approach the matter in a fair and unbiased way; it must assess the applicant's claims by reference to the appropriate principles in the Act; it must ask itself the correct questions as to its task; and it must proceed giving the applicant procedural fairness, by, for instance, giving the applicant a hearing before it makes a decision. Also, it must deal with the matter before it in a way that cannot be described as irrational or capricious.

50    There are limited circumstances in which a failure by a decision-maker to have regard to the consequences of its decision may constitute jurisdictional error: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1. However, there is no suggestion that the MRT committed that kind of error in the present case.

51    Further and in any event, there do not appear to be any “pending proceedings” in the Family Court and, even if there are, the MRT decision does not, of itself, preclude the applicant from pursuing those proceedings.

52    Accordingly, I consider that Ground One does not raise a matter of reasonably arguable error.

53    It is unsurprising that the FCC Judge did not address this ground. It was not raised by the applicant’s grounds of judicial review in the proceedings in that Court.

Ground Two

54    Ground Two contends that the FCC has “disregarded and deprived the applicant’s children of their rights”. This ground lacks merit for reasons similar to those given in relation to Ground One. It does not raise a basis upon which it could be said that the MRT decision was affected by jurisdictional error.

Ground Three

55    It is not easy to understand Ground Three. It may raise a complaint of denial of procedural fairness arising from the fact that, after the dismissal of the appeal by the Full Court of the Family Court on 6 March 2014, the applicant was unrepresented in the FCC. However, the circumstance that the applicant was unrepresented in the FCC does not mean, of itself, that there was a denial of procedural fairness: Dietrich v The Queen (1992) 177 CLR 292 at 335-6; Reisner v Bratt [2004] NSWCA 22 at [4].

56    In the circumstances of this case, it is difficult to discern a basis upon which it could be found that the applicant had been denied procedural fairness in the FCC. When the applicant first appeared without legal representation on 29 May 2014, the FCC Judge adjourned the hearing so that he could obtain an interpreter as well as legal and migration advice. The transcript of the hearing on 29 May 2014 does not suggest that the applicant had any particular difficulties in communication.

57    The hearing of the judicial review application did not then take place until 22 October 2014. The applicant was still unrepresented at the hearing. He told the FCC Judge that he was looking for representation and had sought legal assistance from different entities without success. The FCC Judge decided to proceed with the hearing. He was justified in doing so as the applicant had been provided with a reasonable opportunity to obtain legal representation.

58    The Court was not provided with the transcript of the hearing before the FCC Judge on 22 October 2014. However, it was common ground that an interpreter was available to assist the applicant at that hearing. On the present application, the applicant complained of the adequacy of that interpreter, submitting that he needed a Castilian interpreter rather than a Spanish interpreter originating from the United States or from South America. However, the applicant did not refer to any particular difficulty he had had in making submissions to the FCC Judge. Further, based on the applicant’s presentation in this Court, it seems that his complaint about the interpreter was made in the abstract. On the hearing of the present application, the applicant had an interpreter available to assist him. However, he did not ask for a continuous translation. He said instead that he would only seek to make use of the interpreter in the event that he experienced difficulty in understanding the Court or in expressing himself. The applicant did not seek the assistance of the interpreter in this way at all, although the interpreter did on two or three occasions intervene when it seems that it was apparent to her that the applicant was experiencing difficulty.

59    I observed that, during the hearing, the applicant was able to respond readily and in an adaptive way to new points arising during the hearing. This rather suggested that the applicant does not have difficulties in English comprehension.

60    Accordingly, I do not consider that Ground Three raises a reasonably arguable error by the FCC.

Other matters

61    The applicant did not file an outline of argument. Instead, on 17 April he filed an affidavit which included portions which are in the nature of an outline of submissions. This “outline” appears to raise six further grounds. None of these further grounds appears to have been argued before the FCC but, again, it is convenient to address them directly rather than considering the issues bearing upon the grant of leave to raise them as additional grounds.

Denial of procedural fairness by the MRT

62    The first additional error by the FCC raised by the applicant was as follows:

Failure to take into consideration the procedural unfairness of the MRT in several facets presented in the grounds dismissed and, further, in the submissions and last two documents filed in hearings of May and 22 October 2014 (Annexures AB3-4).

63    The Annexures AB-3 and AB-4 are annexures to the applicant’s affidavits sworn 17 April 2015. It is difficult to identify in those annexures a basis for an argument that the applicant was denied procedural fairness by the MRT in a way which could amount to jurisdictional error. Rather, the applicant raises matters going to his desire, and asserted entitlement, to maintain contact with his two daughters. Those matters, although undoubtedly important to the applicant, do not bear upon the procedural fairness of the MRT hearing.

64    It is true that the applicant did not attend at the hearing before the MRT on 29 May 2012. However, the evidence indicates that the applicant was informed of the hearing that day by letter dated 4 May 2012, by letter dated 11 May 2012 (which notified him that the hearing was brought forward from 12:30pm to 11:00am) and again in telephone calls from a representative of the MRT on 23 and 25 May 2012. The case note made by the MRT representative of the conversation on 25 May 2012 indicates that the applicant expressed disinterest in attending the hearing on 29 May 2012.

65    The applicant’s written material on the present application confirms that he had the telephone communications with the MRT representative on 23 and 25 May 2012. His written submissions included the claim that the MRT representative had not conveyed his assertions of inability to attend by reason of his ill health. I note, however, that the contemporaneous documents do not provide any support for the claim now made by the applicant that he was in a state of ill health at the time. On the contrary, the contemporaneous documents suggest that the applicant may have been actively engaged at the time of the telephone calls. Further, the applicant did not provide any evidence on the present application that he was affected by ill health on 29 May 2012.

66    I also note that by letters dated 22 March 2012 and 10 April 2012, the MRT asked the applicant to provide copies of any court orders which may affect his parental responsibility for the child of Ms Andrews, and explained to him the significance which the court orders may have on his application. It seems that the applicant did not respond to those requests. On 19 June 2012, the MRT obtained from the Family Court a copy of its order of 5 April 2012. The MRT wrote to the applicant on 27 June 2012 enclosing a copy of the Family Court order, explaining its relevance to his application for a visa, and seeking his response. The applicant did not respond to that request and the MRT then proceeded to make its decision on 23 August 2012.

67    In these circumstances, it is difficult to discern any reasonable basis for a claim of denial of procedural fairness by the MRT.

Absence of hearing by the MRT

68    The applicant claimed that the FCC had failed to consider the circumstance that the MRT had not undertaken an oral hearing before making its decision on 23 August 2012.

69    This complaint lacks substance for the reasons given in relation to the claimed denial of procedural fairness. The MRT did conduct a hearing, but the applicant did not attend.

Procedural unfairness by the MRT and the FCC

70    This ground is in effect a repetition of the previous two grounds. The applicant submitted that the FCC had failed to take into account the reason for his not having attended before the MRT on 29 May 2012. He said:

I have never, in 6 years of litigation and many appearances in court, not show (sic), other than by a gross clerical mistake of someone in the Registry in 2009 that was duly corrected afterwards, and to the delivery of judgment of Howard J on 23 December 2014 since it was on the phone and was not there when the court called.

71    As can be seen, the applicant seeks to attribute responsibility for his non-attendance on 29 May 2012 before the MRT to others. However, as already noted, the applicant was informed of the hearing by two letters and in two telephone conversations with a representative from the MRT. Further still, the applicant has not provided any explanation for his own failure to provide the MRT with a copy of the Family Court order of 5 April 2012, despite the express requests of the MRT. Nor has he provided an explanation for his failure to respond to the MRT letter of 27 June 2012 which sought his submissions as to the effect of the Family Court of 5 April 2012.

72    I also note that in Ground Four of the application filed in the FCC on 17 September 2012, the applicant stated:

Prior to the reconsideration I was invited by the MRT to provide further evidence but I replied that there was sufficient evidence to make a decision and declined the invitation. I also reminded the Tribunal that the decision of the Family Court must not be considered as it is now under appeal.

This is an express acknowledgment by the applicant of the fact that he was informed by his entitlement to make submissions and that the he had been invited to do so.

73    In these circumstances, the applicant’s present complaint of denial of procedural fairness lacks substance.

Delay

74    The applicant contended that the FCC had failed to consider the delay “presented in the grounds dismissed of the application for judicial review”. In the amended application filed in the FCC on 7 November 2013, the applicant complained that he had been denied procedural fairness by the MRT by reason of it having delayed, unreasonably, making a decision until 23 August 2012. He noted that the order of this Court remitting the matter for reconsideration by the MRT following its original decision had been made on 22 December 2011 and submitted that the MRT should have been able to make a decision on the circumstances and information then known without delay. Although the applicant did not say so expressly, it seems that the gist of this complaint may be that if the decision had been made before 5 April 2012 (when the Family Court made its order), he would then have been able to satisfy the criteria under subcl 820.221(3)(b)(ii) of the Regulations.

75    In February and March 2012, the applicant was pressing the MRT to make a decision on the remitted application. The MRT does not appear to have commenced considering actively the remitted matter until 7 March 2012 when it was allocated to a Tribunal officer. By letter dated 22 March, the MRT asked the applicant to provide information about Family Court orders; the applicant responded by letter dated 2 April 2012 querying the need for the MRT to have information regarding the Family Court orders; the MRT responded by letter dated 10 April 2012 explaining the relevance of the orders; but the applicant did not respond. As noted, the Family Court made the order on 5 April 2012. Thereafter, the MRT’s listing of the matter for hearing and the time which it took for decision cannot be described as unreasonable.

76    The MRT was bound to consider whether the applicant satisfied the criteria under subcl 820.221 of the Regulations at the time of its decision. This means that for the complaint of delay to have merit, it would have to be held that it was unreasonable for the MRT not to have made a decision on the remittal before 5 April 2012. I would not be prepared to make that finding. That makes it unnecessary to consider whether a delay of that kind relied upon by the applicant gave rise to jurisdictional error.

77    In these circumstances, I do not consider that it is reasonably arguable that the lapse of time has resulted in a denial of procedural fairness.

Bias

78    Next the applicant raised allegations of apprehended bias and bad faith by the MRT which had not been considered by the FCC.

79    These allegations were unparticularised and not supported by anything other than bald assertion. I have not discerned any basis upon which they are reasonably arguable.

A possible appeal to the High Court

80    The last of the additional grounds is not clearly expressed but, as I understand it, the applicant complains that he has reserved his right of appeal to the High Court against the Family Court orders. He contends that this circumstance was not considered by the FCC Judge.

81    This ground lacks substance. No application for special leave to appeal to the High Court has been lodged. The time in which the applicant may do so has well and truly expired. The FCC Judge was correct in proceeding on the basis that the applicant’s appeal rights in respect of the order of the Full Court of Family Court had been exhausted.

Conclusion

82    For these reasons, I consider that none of the grounds of appeal stated in the applicant’s application or in his outline of submissions are reasonably arguable. There is in addition a futility about the application for judicial review because, even if the matter was remitted to the MRT, it would be bound to affirm the decision of the Minister’s delegate.

83    Accordingly, the application for leave to appeal to this Court is dismissed.

Associate:

Dated:    7 May 2015