FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCA 1232

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs in the fixed amount of $1,756 in accordance with r 40.43 and Item 15(b) of Sch 3 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant applies for an extension of time to appeal from orders of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant him a partner visa.

2    The applicant is a male citizen from India of about 29 years of age. He arrived in Australia in 2007 on a student visa, which expired in 2011.

3    The applicant applied for a partner visa in 2013 based on his relationship with his wife, who is an Australian citizen.

4    In September 2014, the delegate refused the applicant’s visa application as he did not hold a substantive visa at the time he applied for the partner visa, as required by Sch 3 of the Migration Regulations 1994 (Cth), and because the delegate found that there were no compelling reasons to waive his non-compliance under Sch 2, cl 820.211(2)(d) of the Regulations.

5    The Tribunal affirmed the delegate’s decision in 2015.

6    The applicant then sought judicial review of that decision in the Circuit Court.

7    In 2016, the Circuit Court remitted the matter, by consent, to be reconsidered in the Tribunal based on Waensila grounds. That is, on the ground that the first Tribunal erred in confining its consideration of “compelling reasons” to those which existed at the time of the application and did not consider those which occurred after the partner visa application was made (see Waensila v Minister for Immigration and Border Protection and Another [2016] FCAFC 32; 241 FCR 121 (Waensila).

8    On 29 July 2016, the Tribunal (the second Tribunal) affirmed the decision not to grant the applicant a visa.

9    On 5 February 2018, the Circuit Court made orders allowing an extension of time to file an application for judicial review concerning the second Tribunal’s decision, but then dismissed the substantive application.

10    The applicant now seeks an extension of time in which to appeal from the Circuit Court’s decision dismissing his judicial review application.

Tribunal’s second decision

11    Following the remittal of the matter to the second Tribunal, the Tribunal wrote to the applicant on 11 July 2016, advising that it had considered all the material before it and was unable to make a favourable decision on that material alone. It invited the applicant to give oral evidence and present arguments at a hearing on 28 July 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice.

12    The Tribunal received no response to its invitation and the applicant did not appear at the hearing. Pursuant to s 362B of the Migration Act 1958 (Cth), the Tribunal then made its decision without taking further steps to enable the applicant to appear before it. To that point the applicant had been represented by a registered migration agent in the review proceeding before the second Tribunal.

13    On 29 July 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a partner visa. It was not in dispute that the applicant did not satisfy the relevant criteria contained in Sch 3 of the Regulations because he did not lodge his partner visa application within 28 days of holding a substantive visa.

14    The Tribunal considered whether compelling reasons existed for not applying the Sch 3 criteria, based on documents the applicant had submitted. It considered that the couple’s strong emotional attachment and the difficulties of separation from one another was not a compelling reason to waive the criteria, as it found that emotional attachment is a normal part of a couple’s relationship.

15    It also referred to the duration of the applicant’s relationship with his wife, and documentary evidence dated between 2013 and mid-2015. The Tribunal stated that there was no evidence before it regarding the current status of the applicant’s relationship with his wife and it was not satisfied that the parties were in a spousal relationship or that their relationship is long term such that would demonstrate a compelling reason to waive the criteria.

16    Regard was given to a medical report regarding the applicant’s wife which referred to her having had a miscarriage and subsequently having suffered depression. The Tribunal noted that the report stated that the applicant was a source of good support for her and that she would need constant help and monitoring from him to prevent deterioration in her symptoms. The report also referred to the wife’s daughter (i.e. the applicant’s stepdaughter), and that his wife required his help to take care of the stepdaughter.

17    The Tribunal further stated that it had regard to the applicant’s written evidence that his wife had had a second miscarriage and that she was desperate to conceive and for this reason they must remain together.

18    The Tribunal considered that, in the absence of further information, it was not apparent whether the applicant and his wife remained in a spousal relationship or whether they had had a child together. It stated that there was also no information before it as to whether the applicant’s wife had continued to be emotionally reliant on the applicant.

19    The Tribunal concluded that it was not satisfied that the wife’s mental health problems and associated emotional reliance on the applicant was a compelling reason not to apply the criteria.

20    The Tribunal considered that it had no information before it as to the applicant’s relationship with his stepdaughter, whom he claimed was emotionally dependent upon and attached to him. As such, it was not satisfied that the stepdaughter’s emotional reliance was a compelling reason.

21    Finally, the Tribunal considered the applicant’s evidence that he was financially dependent on his wife, however found that this meant that his departure would not affect his wife’s financial situation, meaning it did not find it to be a compelling reason.

Circuit Court proceeding

22    The applicant was required to lodge an application for judicial review of the Tribunal’s decision within 35 days of its decision, which requirement was not met. The Minister, however, consented to an extension of time to enable the matter to be dealt with on the substantive issues. The extension was granted.

23    The applicant also sought further time to provide material from his spouse, on the basis that his wife was incarcerated and he was having difficulty arranging for her to give evidence or present material.

24    The primary judge considered that as the matter was one of judicial review, there was no need for the wife to attend or given evidence as she could do so through an affidavit.

25    The applicant’s grounds of review before the Circuit Court were as follows (without alteration):

(a)    The AAT did not ask me to update the information previously provided, yet the AAT was critical of me in not updating the information and used this as a reason to refuse my application, in its letter dated 11 July 2016 the AAT simply asked me to attend at hearing on 28 July 2016 and present oral evidence and arguments, it did not ask me to submit further information or provide a statement of my current circumstances. I could not attend at the hearing, but if I had known or if the Tribunal had asked me to provide further information or a statement of my current circumstances, I would have done so.

(b)    AAT relied heavily on absence of further information in arriving at its decision, yet it did not ask me or give me an opportunity to submit further information in writing.

(c)    The AAT did not review or revisit the information and material before it by considering the compelling reasons or circumstances at the time of decision especially when it had not done so at the time of its first decision on 21 August 2015. Without revisiting or reviewing the information before it the Tribunal simply affirmed its earlier decision of 21 August 2015. As the earlier decision of AAT was confined to considering the compelling circumstances that existed at the time of application, the current decision of AAT of 29 July 2016 is also decided on the same basis.

(d)     The AAT did not consider whether compelling circumstances existed at the time of first decision of 21 August 2015 or second decision of 29 July 2016.

(e)     The Tribunal arrived at certain conclusions not supported by any evidence. In para 25 of its decision the AAT states that is was not satisfied that the “parties are in a spousal relationship or that their relationship is a long term as such that this would be a compelling reason to waive the criteria”, despite the Tribunal noting that there was “no evidence before the Tribunal regarding the current status of the parties’ relationship”.

(f)    At para 28 of its decision the AAT concludes that it is “not satisfied that [his wife’s] mental health problems, and her associated emotional reliance on Mr Singh, is a compelling reason to not apply the criteria” despite the absence of current information in this regard. Tribunal did not consider the fact that compelling circumstances existed at the time when the information was current.

(g)    At para 29 of its decision the AAT concludes that “the Tribunal is not satisfied that the claim that she is emotionally reliant on Mr Singh is a compelling reason to not apply the criteria despite noting that the Tribunal had “no information before it about Mr Singh’s current relationship with [his stepdaughter]”.

(h)    At para 31 the Tribunal states that “emotional attachment is a normal part of a partner relationship, therefore it would not, in itself, give rise to compelling reasons”. The AAT, however, fail to assess this in light of the facts of this case especially the fact my partner had 2 miscarriages and was suffering from depression. Further it did not take into account the emotional attachment/dependence her 5 year old daughter had with/on with me.

26    The primary judge summarised the applicant’s complaint as essentially being that the Tribunal did not do enough to encourage him to provide further evidence and he was not given a reasonable opportunity to appear and present his case. The primary judge noted that the applicant explained he did not attend the Tribunal hearing due to illness on the part of the child in his household, however he did not send any explanation to the Tribunal.

27    The primary judge considered that, in circumstance where the Tribunal had no notice of a request for an adjournment or the bases of such a request, it was not possible to conclude it failed properly to consider such a request. The primary judge did not consider that in doing so the Tribunal failed to accord procedural fairness.

28    Further, the primary judge did not consider that the Tribunal erred in not providing the applicant with greater assistance in encouraging him to place material before it or attend a hearing, finding that it must have been obvious that further information or material would reasonably be required should the applicant expect a different outcome to when his application was previously before the Tribunal. The primary judge found that grounds (a) and (b) were not persuasive.

29    The primary judge stated that grounds (c) and (d) claimed that the Tribunal did not consider whether compelling circumstances existed at the time of its July 2016 decision. Here, the primary judge noted that the only material before the Tribunal was what was previously put before it, meaning that regardless of the point in time, the evidence before it would have been the same.

30    In relation to the remaining grounds, the primary judge found that these took issue with factual findings which were open to the Tribunal to make and no illogicality was present, meaning it was not open to the Court to engage in merits review.

Application in this Court

31    In his affidavit affirmed on 26 March 2018 accompanying his application for an extension of time, the applicant states:

…

3.     After the hearing of 5 February 2018 I received the Court order that my application was dismissed. But I was waiting for further information from Court in relation to the appeal process.

4.     I waited for about 3 weeks and then I contacted a migration agent who told me to contact a migration lawyer. I contacted a lawyer in the city and he asked me for the court decision with reasons. He asked me to contact the Court for that. I contacted the Court and the Court asked me to contact Auscript. I contacted Auscript on 2 March 2018 and they sent me a form to fill and send it to them, which I did. On 14 March Auscript took $2,267.12 from my account. I had spoken to another lawyer around that time and told him about Auscript. He told me that Auscript would give me a transcript of my Court hearing and that it should cost me a couple of hundred dollars. He also told me that I needed to get reasons of decision from the Court. I contacted Auscript and cancelled the order and they refunded my $2,267.12. I then asked Auscript for an estimate of their costs, which on 19 March they told me would be $179.29. I then asked them for the transcript, which I received on 21 March for the cost of $173.50. I also contacted the Court for reasons for the decision, but the Court again sent me the order of 5 February 2018 on 22 March 2018, but not reasons of the decision. I contacted both lawyers again and they said that they could not help me and told me that it could cost me thousands of dollars for the appeal. I could not afford that.

5.     On 21 March I got a phone call from Immigration department regarding my visa. They asked me to come to their office. I went there on the same say and they gave me a bridging visa and asked me to leave Australia. I cannot leave Australia immediately as my wife is in prison and I am helping her mother look after our daughter. I am seeking that my partner visa be granted onshore on compassionate and compelling grounds.

6.     I request that I be given permission to file my Notice of Appeal out of time. It was only last month that I had my matter in Federal Circuit Court and I am only late for about a month as I did not know the time limits and procedure and could not afford a lawyer.

32    In his draft notice of appeal, the applicant seeks to raise the following grounds of appeal (without alteration):

1.     The Federal Circuit Court did not consider that the reason I did not have any legal representation was because I was financially unable to do so and the Court did not give me time to save money and get legal representation.

2.     The Federal Circuit Court did not give me time until after my wife was released from prison so that she could personally come to the Court and give her statement and evidence in support of my case.

3.     The Federal Circuit Court did not consider my request and ability to provide more documents as may be required by the immigration department in support of my visa application.

4.     The Federal Circuit Court did not take into account that I was following the advice of my migration agent whom I trusted that he knew what to do in my case and what documents to provide to the Tribunal. I followed my migration agent’s advice and provided all the information and documents he had asked for. He did not tell me what more documents were required. If I had known, I would have provided more documents.

5.     The Federal Circuit Court also did not take into account that my migration agent who was acting for me at in the Tribunal case was supposed to let the Tribunal know the reason I could not go the hearing at the Tribunal and arrange another date for hearing at the Tribunal.

6.     The Federal Circuit Court did not consider the compassionate ground of sickness of my daughter as being the reason of my absence at the Tribunal hearing.

7.     The Federal Circuit Court did not consider the genuineness of my married relationship with my wife.

8.     The Federal Circuit Court did not consider the compelling reasons of my wife being in prison and our daughter being looked after me with the help of my wife’s mother while my wife is in prison.

9.     The Federal Circuit Court and the Tribunal were very strict and did not properly consider my compelling circumstances for making an application in Australia rather than going back to India and making the application there and the time it could have taken before my application was decided and I could come back to be with my wife and daughter. It would have been a long gap in our relationship which would not have been good for anyone.

33    The applicant represented himself. He did not file an outline of written submissions in the proceeding. At the hearing, he made brief oral submissions in relation to his proposed grounds of appeal. In essence, these submissions were directed to the underlying merits of his case rather than identifying any error on the part of either the FCCA or the Tribunal. The applicant placed particular emphasis on his concern for the welfare of his stepdaughter in circumstances where her mother (i.e. the applicant’s wife) is in prison. This concern is entirely understandable but, as I pointed out to the applicant, it is a matter which he should take up with the Department. He said that he was particularly concerned not to have to return to India to make a further visa application on account of his wife being in jail, and because of his stepdaughter’s welfare and best interests.

34    The Minister, by his outline of written submissions filed on 8 August 2018, contended that the application for an extension of time should be dismissed with costs in a fixed amount.

35    The Minister referred to r 36.03 of the Federal Court Rules 2011 (Cth) which requires that a notice of appeal be filed and served within 21 days after the date when the orders or judgments were pronounced. He submitted that the applicant’s notice of appeal should have been filed by 26 February 2018, however his application for an extension of time was not filed until 26 March 2018.

36    The Minister accepted that there is no prejudice to him if the Court were to grant an extension of time, beyond that of the public interest in the finality of administrative decision-making. He submitted that the 28 delay is not insubstantial and the applicant has not offered a proper explanation for the delay.

37    In this regard, the Minister noted that the applicant acknowledged that he received the Court order dismissing his application and was late filing his appeal notice because he did not know the time limits and procedure and could not afford a lawyer. The Minister contended that this explanation is insufficient, especially as the applicant was present at the hearing before the Circuit Court when the ex tempore judgment was delivered. He submitted that it is the applicant’s responsibility to ascertain his review rights and any relevant time limits, citing SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33].

38    The Minister also contended that the draft grounds do not establish any error of law in the Circuit Court, nor any jurisdictional error in the Tribunal’s decision.

39    In relation to draft grounds 1 to 3, the Minister contended at [29] and [30] of his written submissions:

29     Ground one contends that the primary judge ‘did not consider that the reason I did not have any legal representation was because I was financially unable to do so and the Court did not give me time to save money to get legal representation’. The primary judge considered the applicant’s request for an adjournment on the basis that he wished to provide evidence from the sponsor, which it refused: BD 17 at [16]-[17] (addressed at [31] below). However, there is no evidence that the applicant requested an adjournment on the basis that he wished to obtain legal representation. No error is made out.

30     Grounds two and three challenge the primary judge’s refusal to adjourn the hearing so the sponsor could provide evidence to the FCC. Ground two contends that the FCC ‘did not give me time until after my wife was released from prison so that she could personally come to the Court and give her statement and evidence in support of my case’. Ground three contends that the FCC ‘did not consider my request and ability to provide more documents as may be required by the immigration department in support of my visa application’.

40    The Minister submitted that these grounds confuse the Court’s role in judicial review and invite the Court to engage in impermissible merits review. The primary judge stated that it was not necessary for the wife to attend the Circuit Court hearing, or give evidence. Despite orders allowing the applicant to provide documents, no evidence was filed. The Minister submitted that the Circuit Court’s refusal to adjourn the proceeding was not unreasonable in the circumstances and no error is made out in that regard.

41    As to the applicant’s draft grounds 4 to 6, the Minister contended at [32] and [33] of his submissions:

32    Ground four contends that any deficiencies in the documents the applicant provided to the Tribunal was his migration agent’s fault, as he relied on his agent’s advice as to what documents to provide. Ground five contends that the applicant’s migration agent was supposed to seek an adjournment of the Tribunal hearing. The applicant alleges the FCC did not take these matters into account. There is no evidence that the applicant made any allegations against his migration agent to the Tribunal or the FCC. Accordingly, there is no error in the primary judge’s decision not addressing this. Insofar as the applicant is seeking to raise new allegations on appeal, the first respondent submits that these allegations are entirely unsubstantiated and leave to bring these new grounds on appeal should be refused.

33    Ground six contends the primary judge did not consider the applicant’s explanation that he did not attend the Tribunal hearing because his daughter was sick. This was clearly considered by the primary judge: BD 19 at [20]. However, the primary judge found the applicant did not send any note or message to the Tribunal either before or after the hearing advising them he was unable to attend for these reasons: BD 19 at [20]. Given the applicant had not sought an adjournment of the Tribunal hearing, HH found the Tribunal did not fail to consider an adjournment request or afford the applicant procedural fairness: BD 19 at [21]. This ground simply expresses the applicant’s dissatisfaction with the Court’s reasons and discloses no legal error in the primary judge’s decision.

42    In respect of the applicant’s remaining draft grounds, the Minister submitted at [34] as follows:

34     Grounds seven, eight and nine contend the primary judge did not consider the genuineness of the applicant’s and sponsor’s relationship or the compelling reasons for not applying the Schedule 3 criteria. In particular, the applicant claims the sponsor is in prison and he and the sponsor’s mother look after their daughter. Again, this confuses the Court’s role in judicial review proceedings. This evidence was not before the Tribunal and the applicant invites the Court to undertake impermissible merits review. No error in the primary judge’s decision is made out. Insofar as these grounds challenge the Tribunal’s decision, the first respondent submits the Tribunal correctly considered the evidence that was before it at the time of its decision as to whether there were compelling reasons for not applying the Schedule 3 criteria and its findings were open to it on the available evidence (BD 4 at [22]-[32]) … No jurisdictional error in the Tribunal’s decision is made out.

Consideration

43    I am prepared to accept that the applicant has provided an adequate explanation for the relatively short delay in seeking to appeal the Circuit Court’s orders. I accept his unchallenged evidence that he took some steps to obtain legal advice and that there was some delay in obtaining a copy of the Transcript, as well as the primary judge’s reasons for judgment.

44    The critical issue on whether time should be extended relates to the merit of the proposed grounds of appeal.

45    As to proposed ground 1, which relates to the claim that the applicant did not have legal representation in the Circuit Court because he could not afford it and the Court declined an adjournment for him to save enough money to obtain legal representation, there is no evidence that the applicant’s request for an adjournment in the Circuit Court was put on the basis of his desire to obtain legal representation. The ground lacks sufficient merit to warrant an extension of time.

46    As to proposed grounds 2 and 3, which relate to the applicant’s desire to have his wife come to Court, there is no sufficient merit in these grounds in circumstances where, as the primary judge pointed out, evidence could have been given by way of affidavit and none was filed by the applicant in respect of his spouse.

47    Proposed grounds 4 and 5 relate to the conduct of the applicant’s migration agent. As the Minister pointed out, there is no evidence that the applicant made any allegations against his agent in either the Tribunal or the Circuit Court proceedings. Necessarily, therefore, the primary judge did not err in not addressing those matters. There is insufficient merit in these proposed grounds.

48    As to proposed ground 6, which complains that the primary judge did not consider the applicant’s explanation that his failure to attend the Tribunal hearing was because his stepdaughter was sick, the primary judge plainly did consider this matter but his Honour noted that the applicant did not send any explanation to the Tribunal for his failure to attend. There is insufficient merit in this proposed ground.

49    As to grounds 7, 8 and 9, which relate to whether the primary judge considered the genuineness of the applicant’s relationship with his sponsor and the issue of waiver, I accept the Minister’s submission that there is insufficient merit in these matters. To the extent that they relate to the Tribunal, the Tribunal did turn its mind to these matters and the applicant’s complaint appears to relate to the merits of that assessment, not its legality.

50    None of the proposed grounds has sufficient merit to warrant an extension of time.

51    As I have indicated above, the applicant has an understandable concern to protect the welfare of his stepdaughter while her mother is in goal. This is matter which warrants careful consideration and review by the Department.

Conclusion

52    The application for an extension of time will be dismissed. A fixed costs order will be made as sought by the Minister.

Associate:

Dated:    21 August 2018