FEDERAL COURT OF AUSTRALIA

Jaipal v Minister for Immigration and Border Protection [2016] FCA 992

ORDERS

THE COURT ORDERS THAT:

1.    This application for an extension of time within which to seek leave to appeal and the application for leave to appeal be dismissed.

2.    The applicant pay the costs of the first respondent to be taxed if not agreed.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    The applicant seeks an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia delivered on 1 April 2016. The primary judge dismissed the application for judicial review at a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that no arguable case for the relief claimed was raised.

Background

2    The following background which is not controversial is substantially drawn from the written submissions of the first respondent (Minister).

3    The applicant is a citizen of India, who first arrived in Australia on 26 April 2009 on a Student (Temporary) (Class TU) visa. The applicant's visa was cancelled on 3 September 2010. On 2 December 2011 the applicant made an application for a protection visa. On 17 May 2012 that application was refused. That decision was affirmed on review on 24 May 2013.

4    On 16 July 2013, the applicant applied for a Partner (Temporary) (Class UK) visa. On 22 August 2014, the delegate refused to grant the visa on the basis that the applicant did not satisfy clause 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5    The applicant sought review of the delegate's decision before the Tribunal by application dated 1 September 2014. The applicant appeared at a hearing before the Tribunal on 20 October 2015. The Tribunal made its decision on 5 November 2015, affirming the delegate's decision on the basis that the applicant failed to satisfy clause 820.211(2)(a) of Schedule 2 to the Regulations.

Tribunal’s decision

6    The Tribunal identified that the relevant issue on review was whether the applicant satisfied clause 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations. Clause 820.211(2)(a) required that, at the time of application, the applicant was the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Clause 820.221 required that this continue to be the case at the time of decision.

7    The term 'spouse' was defined in section 5F of the Migration Act 1958 (Cth) (the Act). Relevantly, section 5F(2) provided:

(1)    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.

8    Section 5F(3) of the Act provided that the Regulations may make provision in relation to the determination of whether one or more of the conditions above exist. Regulation 1.15A provided that the Minister must consider all of the circumstances of the relationship, including the factors set out in regulation 1.15A(3). Those factors include: the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and the nature of the persons' commitment to each other.

9    Overall, the Tribunal found that the applicant was not a 'credible witness' and identified the following concerns with the applicant's evidence.

(a)    he gave inconsistent accounts about where he and the sponsor first met;

(b)    his evidence about the sponsor's criminal history and incarceration was 'vague and confused';

(c)    he gave evidence that was inconsistent with both of the statutory declarations provided in support of the application;

(d)    he did not remember his wedding date; and

(e)    he incorrectly named one of the witnesses at his wedding.

10    The Tribunal also considered the factors in regulation 1.15A(3) in turn.

Financial aspects of the relationship

11    The Tribunal accepted that the applicant and the sponsor had a joint bank account. However, that account was set up after the Tribunal hearing and there had been only one deposit. Otherwise, the Tribunal found that there was 'no evidence' of 'joint assets or ... liabilities' and the applicant confirmed they had never signed a lease together.

Nature of the household

12    The Tribunal found that the applicant's evidence in relation to this factor to be 'vague and internally inconsistent'. In particular, the Tribunal noted that the address on the application for the visa was different to the applicant's claimed addresses and other evidence provided in support of his application. In light of the limited 'independent evidence' and the Tribunal's concerns with the applicant's credibility generally, the Tribunal did not accept that the applicant and the sponsor 'ever lived together'.

Social aspects of the relationship

13    The Tribunal noted that the applicant incorrectly named one of the witnesses at his wedding. The applicant also gave evidence that was inconsistent with both of the statutory declarations provided in support of the application. The Tribunal found that the other evidence provided demonstrated that the sponsor 'held herself out' to be married to the applicant. However, there was otherwise 'very limited independent evidence' that the applicant and the sponsor had represented themselves as a married couple socially.

Nature of the persons' commitment to each other

14    In relation to this factor, the Tribunal set out the following concerns:

(a)    the applicant's evidence about the sponsor's incarceration was 'vague and unconvincing' and the Tribunal did not accept that the applicant provided financial assistance or visited as frequently as he claimed;

(b)    it was not persuaded that the applicant had ever been involved in the sponsor's medical treatment or care;

(c)    the applicant had a 'lack of knowledge' about the sponsor and her family; and

(d)    it reiterated various deficiencies in the applicant's evidence and inconsistencies between his documentary and oral evidence.

15    The Tribunal concluded that the evidence was not consistent with the parties being in a relationship that was 'genuine and continuing', and that there was 'no independent evidence of any commitment of either party to the relationship'.

16    Accordingly, the Tribunal found that the applicant and the sponsor failed to meet the definition of 'spouse' in section 5F of the Act. Consequently, the Tribunal found that the applicant did not satisfy clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.

17    Thus the Tribunal noted that it was unnecessary to consider whether there were 'compelling reasons' to waive clause 3001 of Schedule 3 to the Regulations. In other words, given the Tribunal found that the applicant did not satisfy clause 820.211(2)(a), it did not need to consider whether the applicant satisfied clause 820.211(2)(d).

The Federal Circuit Court proceedings

18    The applicant sought judicial review of the Tribunal's decision. The application for review recounted the events that led to the application for a visa and made submissions relevant to the merits of the application and to whether there were 'compelling reasons' to waive the requirements of clause 3001 of Schedule 3 to the Regulations.

19    The primary judge found that none of the grounds 'identify any arguable legal error by the Tribunal'. Further, the primary judge found that the grounds were 'in substance, an impermissible challenge to the adverse findings of the Tribunal as to the merits of the matter'.

Extension of time

20    The application for leave to appeal was not filed within 14 days of the Federal Circuit Court's interlocutory decision as required under rule 35.13(a) of the Federal Court Rules 2011 (Cth) (the Rules). Accordingly, the applicant requires an extension of time under rule 35.14 of the Rules. It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include: the extent of the delay; the explanation for the delay; any prejudice a respondent might suffer because of the delay; and the merits of the proposed appeal: see e.g. Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 at [15].

21    The application was filed 38 days out of time. The Minister accepts that he would not be prejudiced by the Court granting an extension of time. In his affidavit in support, the applicant explains that he could not file the application in time because he 'did not have money to pay the application fees'. The Minister notes that impecuniosity (and a lack of knowledge of relevant appeal periods) would not ordinarily provide a sufficient explanation for delay: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7].

22    However, the Minister principally contends that the draft notice of appeal has no reasonable prospect of success and the Court should refuse to grant the applicant an extension of time to file the notice of appeal on that basis.

Leave to appeal

23    Even if the Court extends time, the applicant still requires leave to appeal from the interlocutory decision to dismiss the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (see also rule 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) and section 24(1A) of the Federal Court of Australia Act 1976 (Cth)). Whether leave to appeal should be granted involves well established principles: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397:

(a)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration; and

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

24    The Minister correctly submits the onus lies on the party seeking leave to appeal: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J.

Grounds of the application

25    The application for an extension of time and the draft notice of appeal raise four identical grounds. The applicant contends that the Tribunal's findings were 'unreasonable' (ground one), and that the Tribunal 'failed to understand the law' (ground two), 'took into account irrelevant facts and disregarded relevant facts' (ground three), and failed to 'act fairly' (ground four).

26    The Minister submits that these grounds seek impermissible merits review. I find that, in substance, this is their effect. Moreover, these grounds were not raised in the Court below. Accordingly, the applicant requires leave to raise them on appeal in the event that time is extended and leave to appeal is granted: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [18]-[31].

27    As I have explained the Tribunal found that the applicant failed to satisfy clause 820.211(2)(a) of Schedule 2 the Regulations, which relevantly required the applicant to satisfy the definition of 'spouse'. The Minister submits that the Tribunal correctly interpreted and applied clause 820.211(2)(a) of Schedule 2 to the Regulations. The Minister further submits that the Tribunal made findings that were open to it for the reasons it gave and the Court cannot review the merits of the Tribunal's decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

28    In circumstances where the Tribunal found that clause 820.211(2)(a) was not satisfied, the refusal of the visa was mandated by the Act (sections 65(1)(b) and 415(1) of the Act). In those circumstances, as the Minister submits correctly, the Tribunal did not need to go on to consider whether the applicant satisfied clause 820.211(2)(d). Having found that the applicant failed to satisfy the definition of 'spouse', the Tribunal did not need to consider whether there were 'compelling reasons' to waive the requirements of clause 3001 of Schedule 3 to the Regulations.

29    No appealable error on the part of the primary judge or any jurisdictional error on the part of the Tribunal is disclosed by the proposed grounds.

Conclusions and Orders

30    The proposed grounds of the application for an extension of time, leave to appeal, and the draft notice of appeal, do not have reasonable prospects of success. The judgment and orders of the primary judge are not attended by sufficient doubt to warrant reconsideration by this Court. The application for extension of time and leave to appeal will be dismissed with costs.

Associate:

Dated:    19 August 2016