FEDERAL COURT OF AUSTRALIA

Heller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 907

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal of Ariane Madeleine Heller filed on 14 October 2019 be dismissed as incompetent.

3.    The appellant pay the first respondent’s costs of and incidental to the proceedings, fixed in the amount of $2,000.00.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before me is a notice of objection to the competency of an appeal from a decision of a Judge of the Federal Circuit Court of Australia. The notice of objection to competency was filed by the first respondent (Minister) on 4 November 2019. The notice was originally listed for hearing before me on 8 April 2020. However, in the circumstances of the present COVID-19 pandemic in Australia, on 23 March 2020, I made the following orders:

1.     The respondent’s notice of objection to the competency of appeal be heard on the papers.

2.     The respondent is to file and serve submissions in respect of the competency of the appeal by 4.00 pm on 27 March 2020.

3.     The appellant is to file and serve submissions in respect of the competency of the appeal by 4.00 pm on 15 April 2020

4.     The respondent is to file and serve any submissions in reply by 4.00 pm on 22 April 2020.

 5.     Costs be reserved.

 6.     Liberty to apply.

2    On 20 April 2020, I reserved my judgment in the proceedings.

3    In preparing these reasons for judgment, I have had regard to the submissions of the appellant, Ms Heller, filed on 15 April 2020, as well as the Minister’s submissions, filed on 25 March 2020 and on 22 April 2020. I have also had regard to the affidavit of Ms Heller filed on 14 October 2019.

Background

4    At first instance, in Heller v Minister for Home Affairs [2019] FCCA 2940, the primary Judge refused an application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal’s decision affirmed a decision of the delegate of the Minister not to grant Ms Heller a partner visa under the Migration Act 1958 (Cth) (Migration Act). The primary Judge observed:

2.    As one can tell from the dates I have just read into the record, the application was made well and truly outside the 35 day limit. In fact, it was some 405 days after that limit, or some 440 days after the decision had been made. Because of this, the Applicant must convince this Court that the Court should extend the time in which the Applicant is able to file an application.

3.    In doing so, the Court looks at the question of delay and why there was delay, and, secondly, looks at whether the merits of the application itself are such that the Court should hear the matter. The third matter that the Court looks at is what is the prejudice to the First Respondent. In this case, the First Respondent has quite properly not pointed to any prejudice. So therefore, the Court only needs to look at the first two aspects.

5    In summary, his Honour noted that the appellant was a national of Germany, and that Ms Heller had applied for a partner visa on the basis of her relationship with her sponsor. His Honour examined the decision of the Tribunal, relevantly observing:

8.    The AAT did go through the relevant law and then looked at whether the parties were in a de facto relationship. In short form, the AAT looked at the financial aspects of the relationship as to:- whether there was joint ownership of assets; joint liabilities; the extent of pooling of financial resources; any legal obligations owed to each of the parties by the other; and, any sharing of day to day household expenses. The Tribunal said at paragraph 39:

At the time of review, there was no evidence of a probative nature before the Tribunal about the financial aspects of the parties’ relationship and no plausible explanation has been offered in relation to the withholding of this information. The Tribunal has given no weight to the financial aspects of the relationship when considering whether the parties were in a genuine and mutually committed de facto partnership. The Tribunal is not satisfied the parties exhibit the financial aspects of a de facto partner relationship, at the time of the application or at the time of the review.

9.    The Tribunal then looked at the nature of the household and looked at all of the statements that had been given by both the Sponsor, the Applicant and many others. At paragraph 45 the Tribunal said:

The Tribunal has given negligible weight to the household arrangements of the parties’ relationship. The Tribunal is not satisfied that the parties lived together at the time of application or at the time of review and have established a household consistent with a couple in a genuine and mutually committed de facto relationship.

10.    The Tribunal then looked at the social aspects of the relationship and had a great deal of consideration of all of the material that the Applicant, the Sponsor and many other had given to the Tribunal. At paragraph 52 the Tribunal said:

The Tribunal has given negligible weight to the evidence supporting the parties’ social aspects of the de facto relationship. The Tribunal is not satisfied that at the time of review, the applicant and the sponsor present themselves to family and friends as being in a committed partner relationship, or are regarded by others as such.

11.    The Tribunal then looked at the nature of the commitment by the Applicant and the Sponsor to each other. The Tribunal said at paragraph 56:

Overall, the Tribunal finds that, at the time of application and at the time of review, there was a lack of persuasive and credible evidence of the parties’ shared finances, of cohabitation or establishment of a common household, of joint social activities or social recognition of the relationship and of a mutual commitment to one another. On the applicant’s own admission, the parties were not living together and the relationship had soured. The Tribunal is not satisfied that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others.

12.    The Tribunal then took into account that the Applicant had advised the Tribunal, in her Form 14.10, that the relationship with the Sponsor had not been “together for months” and that the whole chain of abusive behaviour by the Sponsor over at least one year had had a huge impact on her and her children’s wellbeing. The Applicant claimed, however, that she was still in a de facto relationship with the Sponsor. Her advice to the Tribunal was that the relationship had not ended.

13,    The Tribunal was not satisfied that there was a genuine and continuing relationship, and the Tribunal was not satisfied that the parties lived together and not separately or apart on a permanent basis.

14.    The Tribunal was not satisfied that the Applicant met the additional criteria prescribed in Reg.2.03A of the Migration Regulations 1994 (Cth) (“the Regulations”) that there was a de facto relationship between the parties that had existed for at least 12 months prior to the lodging of a Partner Visa application.

15.    The Tribunal looked at whether Schedule 3 of the criteria, contained in the Regulations; that is, whether there were compelling and compassionate reasons as to why the Applicant should not have to go and make the application offshore. After considering all of those matters in quite some detail, the Tribunal came to the conclusion, at paragraph 97, that they were not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.

16.    The Tribunal then looked at whether a claim of family violence had been made under the Regulations. Paragraphs 98 to 107 of the Tribunal’s reasons deal with this matter. The Tribunal came to the conclusion that there had not been a claim of family violence that had been established.

17.    The Tribunal looked at all other additional considerations but then came to the conclusion that the Applicant did not meet the requirements of the visa and, therefore, the decision was affirmed.

6    After considering the grounds of the amended application before the Court, the history of the proceedings, and the submissions of Ms Heller relating to applications for partner visas where there is domestic violence in the relevant relationship, his Honour observed:

23.    Unfortunately, the matter will only have merit if there was a genuine relationship to start with. The AAT had made an almost emphatic conclusion that there was no genuine relationship that was in existence, so such a relationship could not have ended because of domestic violence when the relationship did not get to that point in the first place. It seems to me that that is a very important circumstance to bear in consideration of this matter.

7    His Honour noted further that the appellant had sought an adjournment by the Tribunal, however, the Tribunal had refused that adjournment. His Honour then noted:

26.    There may be something to what the Applicant has said, but the question is whether the attitude by the AAT was reasonable. The AAT has, in their reasons, spoken of the number of adjournments that had been given to the Applicant in this matter and the Tribunal was of the view that the matter simply needed to be heard. The Tribunal’s reasoning, at paragraphs 11 to 13, is consistent with the power of the Tribunal and, given the history of the matter, is not unreasonable. It could never be said that it was either unfair or biased.

8    His Honour concluded:

27.    It seems to me, then, when one looks at the main complaints that the Applicant has, that there is very little merit in them. Many of the other matters that the Applicant complains of are really incidental to those matters and, when dealing with the main matters, it deals with those aspects of what it is that the Applicant complains of.

28.    But in the end, the decision that the Tribunal came to was that there was no genuine relationship. That, on the evidence before the Tribunal, was a conclusion that was open to it. Having come to that conclusion, it really matters not know whether the Applicant has had this new information about domestic violence because, unless there was a genuine relationship at any stage, the matter of domestic violence does not come into the aspect.

29.    One can understand why the Applicant may feel that things have not gone in a way that she would have thought they would have gone, but nevertheless, the Tribunal has acted within the bounds of procedural fairness, as laid out in the Migration Act 1958 (Cth), and has come to decisions that are open to it.

29.    I am not convinced that there has been an adequate explanation for the delay and I am not convinced that there is sufficient merit in the application itself to warrant the Court hearing it.

30.    Therefore, I refuse the application to extend the time in which to file the application and, in all other respects, the application is dismissed with costs in the sum of $6,500.

9    In her notice of appeal from the primary decision, the appellant sought the following orders:

1. DELAY accepted

2. Jurisdictional Error of AAT accepted

3. Case be transferred back to AAT

4. Cost to the opponent [sic]

10    I understand from the fourth order sought by Ms Heller that she seeks costs.

11    Ms Heller’s grounds of appeal are stated to be: “As outlined in Affidavit – attached”.

12    The body of Ms Heller’s affidavit reads as follows:

"The TRIAL"

When Franz Kafka wrote his famous novel "The Trial"(Der Prozess),

he did not mean it as an instruction manual.

He meant it as a warning!

The warning of this famous novel is, in essence:

"Do not let bureaucracy rule over JUSTICE!"

Unquestionably, Germany can be regarded as the motherland of

bureaucracy.

Therefore a German author is bringing this warning to the world.

Never, not in my wildest nightmares, would I have been able to

anticipate, that there is ONE country on this planet, which is way

more under the yoke of bureaucracy then Germany:

Australia!

Australia regards itself as a FREE country.

This is still true in many regards.

However, bureaucracy has snuck in through the backdoor long ago

- almost unnoticed by both the public and the decision makers.

The people on the streets call it "Red Tape".

My immigration history of a decade has been a kafka-esque farce.

At all stages bureaucracy has been ruling over JUSTICE.

In the later stages, self-perpetuating Bureaucracy Almighty has

taken over to an extent, that could be compared with

a cancerous growth, spinning just out of control.

Lifelong, I have been a staunch opponent of bureaucracy and a

very strong believer in JUSTICE.

JUSTICE will ALWAYS prevail!

Often not short term, but sometimes middle-term and ALWAYS,

ALWAYS long-term.

I am 1000% sure of this fundamental concept of life.

Hence my APPEAL.

My APPEAL

On the 23rd of September 2019, the FCC [the primary Judge] has dismissed

my Application for Review of an AAT Decision

on the grounds of the DELAY of my Application.

The Judge had to consider 3 aspects in regards to the DELAY:

1. Excuses for the Delay

2.Disadvantages a Respondent might suffer

3.Merits of the whole Application

Whilst point 1 and 2 did not seem to be a bigger problem,

point 3 stuck out in the dismissal of my application.

In essence, the Judge said, that the main "flaw" in my application for

review of the AA T decision was:

"Has there been a genuine relationship at all?"

This is a "Catch 22":

My Appeal to the FCC was based on the fact, that I was unable to

bring "further evidence" before the AAT in order to substantiate my

application for a partner visa,

because of DOMESTIC VIOLENCE in this partner/sponsor

relationship.

Due to Domestic Violence my relationship to my partner/sponsor

ended right at the very time, when I had planned to complete my

AAT-Application.

The AA T has failed to acknowledge, that a separation due to

Domestic Violence is a game changer for a partner visa application.

Instead, the AAT was pressuring me to defend a partnership, that

had just ended.

The Judge's reasoning is trapped in this "Catch 22".

Let us better call it: "A Vicious Circle"

[The primary Judge] has failed to give weight to the fact, that the AAT

ignored their own guidelines of how to handle a case of Domestic

Violence.

Instead:

The Judge, when giving his grounds of dismissal, read out the

submission of the first respondent, verbally.

This submission only repeats the AAT decision, verbally.

The AAT decision only repeats the DIBP decision, verbally.

But the DIBP decision was WRONG.

Hence my application for review to the AAT!

The AAT has disregarded their own guidelines.

Therefore my application to the FCC.

The cat is biting its tail.

The main "Flaw" in the Judge's reasoning:

He is giving considerable weight to DIBP decision.

But, once again: this DIBP decision was WRONG.

A wrong decision does not become right by repeating it - over and

over again.

It is notable, that I have invited the Judge and the respondent's

lawyer to please ask questions in regards to my relationship to my

ex-partner/sponsor.

In my understanding, the details of my partner visa application

were not to be discussed before the FCC.

Therefore, I gave the Court a general outline of this original

application - with good examples of where the DIBP had gone

wrong.

Being aware of the limited timeframe of the FCC-Hearing, I focused

on:

-My explanation for the DELAY

-The JURISDICTIONAL ERROR of the AAT

Because I did not go into the details of my partner visa application

at Court, I explicitly invited the Judge to please ASK!

Given, that the main weight of the Judge's decision lies on what the

judge calls a "Flaw"(Supposedly no relationship in the first place),

it at least notable, that not ONE question was asked in regards to

the supposedly not existing relationship.

With my Application for Review of the FCC-Decision,

I rely on the idea, that JUSTICE will prevail.

This is the FIRST DRAFT of my application to the FC.

Please consider, that I can amend this application.

I can provide more details,

e.g.:

- AUDIO of my FCC-Hearing

- Transcript of this Hearing

During the hearing, the Judge has explained the reasons for his

decision.

As the Judge's main argument was:

"There has never been a genuine relationship, because the DIBP

said so",

it might be necessary to argue the original partner visa application

at this stage ...

... as this was the major ground of dismissal by the FCC.

Other than that, I rely on my Affidavits/Submissions to the FCC.

Understandably, I had to think about my next step,

consult a lawyer,

and eventually decide.

I will continue to self-represent.

However, I will consult a lawyer at certain stages.

I did consult a Migration Lawyer before lodging this Application.

I am aware, that the FC will not take any new information into

account.

There is enough existing information in this process, which can be

argued in favour of my application.

In any case:

PLEASE let JUSTICE rule over bureaucracy!

notice of objection to competency

13    The Minister objects to the competency of Ms Heller’s appeal on the following grounds:

1.    The judgment of [the primary Judge] dated 23 September 2019 dismissed the appellant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time within which to seek judicial review of a decision of the Administrative Appeals Tribunal dated 30 August 2017.

2.    By operation of s 476A(3)(a) of the Migration Act 1958 (Cth), an appeal may not be brought to the Federal Court of Australia from a judgment of the Federal Circuit Court of Australia that refuses to make an order under s 477(2) of the Migration Act 1958 (Cth).

consideration

14    Section 477 of the Migration Act relevantly provides:

Time limits on applications to the Federal Circuit Court

(1)     An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)     The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)     an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)     the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

…

15    Section 476A of the Migration Act relevantly provides:

Limited jurisdiction of the Federal Court

…

(3)     Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)     a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

…

16    It is clear that, pursuant to s 476A(3)(a) of the Migration Act, no appeal lies to the Federal Court of Australia from a judgment of the Federal Circuit Court refusing to extend time under s 477(2): see for example SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [50], [76]. As Griffith J explained in BDA16 v Minister for Home Affairs [2019] FCA 85, in upholding a similar objection to competency filed by the Minister in that case:

16.    As the Minister emphasised, while this Court can hear appeals from the FCCA under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), a jurisdictional bar is created by s 476A(3)(a) of the Act in respect of appeals from a judgment of the FCCA that “makes an order or refuses to make an order under subsection 477(2)”. This jurisdictional bar has been applied in numerous cases involving attempted appeals from decisions of the FCCA to refuse to extend time under that statutory provision, including Singh v Minister for Immigration and Border Protection [2017] FCA 1316 (Singh) and, more recently, in BCL16 v Minister for Immigration and Border Protection [2018] FCA 1870 (BCL16). Having regard to these authorities, it is unnecessary to consider the underlying merits of the proceeding in the FCCA because they are irrelevant to the question whether this Court has jurisdiction to hear an appeal (see Singh at [4] per Pagone J).

17.    I accept the Minister’s submission that the applicants have failed to provide any foundation for grounding this Court’s appellate jurisdiction…

See also, for example, Salapo v Minister for Home Affairs [2019] FCA 1287.

17    In her submissions, Ms Heller contended, in summary:

    There are always exceptions to every rule;

    It cannot be the intention of Parliament that an error be perpetuated for merely formal reasons;

    The Minister’s objection to competency was filed out of time, namely on 4 November 2019, contrary to the orders of Registrar McCormick of 22 October 2019 that any notice of objection to competency be filed within 7 business days of that date; and

    Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 is authority for the proposition that the Minister’s objection to competency is itself incompetent because it is an attempt to dismiss a case, rather than secure costs through objection to competency.

18    In relation to these submissions, I find as follows.

19    There are no exceptions to the provisions of s 476A(3)(a) of the Migration Act. Where the Federal Circuit Court makes an order, or refuses to make an order, under s 477(2) (as was the case in the primary decision), there is no jurisdiction for an appeal to the Federal Court of Australia from that decision.

20    The intention of the legislature, as manifested by s 477(2) and s 476A(3)(a) of the Migration Act, appears to be to prevent ongoing litigation concerning judicial review of decisions of the Tribunal where applications for judicial review are made out of time. In essence – where an applicant fails to seek judicial review by the Federal Circuit Court of a migration decision of the Tribunal under the Migration Act within 35 days (as required by s 477(1) of the Migration Act), the legislation rests the final decision as to whether to grant an extension of time with the Federal Circuit Court.

21    Ms Heller appears aggrieved at the prospect that the Minister’s objection to competency would be accepted and considered when it was filed out of time, in circumstances which she considers gives rise to a double standard, given the grounds on which the Minister claims her notice of appeal is incompetent. However:

(1)    The Minister’s notice of objection to competency is not subject to the same legislative prohibitions as Ms Heller’s notice of appeal;

(2)    While the notice of objection to competency was filed out of time, Ms Heller has not identified any prejudice to her in these circumstances if time were extended to the Minister to permit the Minister to file the notice of objection to competency (cf Chen v Migration Agents Registration Authority (No 2) (2016) 155 ALD 88; [2016] FCA 865 at [22]; Animals Angels e.V. v Secretary, Department of Agriculture (2014) 141 ALD 158; [2014] FCA 398 at [116]); and

(3)    Although the notice of objection to competency was filed out of time, the Court must address the question of competency as an aspect of its duty to consider its jurisdiction: CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 at [5]; Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8 at [8]; Miller v Wertheim (2002) EOC 93-223; [2002] FCAFC 156 at [4].

22    It follows that it is appropriate that the Court should exercise its power under r 1.34 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) to dispense with r 31.24(1) of the Federal Court Rules, and permit the Minister to rely on the notice of objection to competency.

23    Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 concerned an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). At the time, the governing rules of such appeals made no provision for the filing of a notice of objection to competency, such that the notice would itself be incompetent. This was in contrast with applications under the Migration Act, the governing rules of which allow for the filing of a notice of objection to competency. The Court in Yao ultimately found the appeal was incompetent and dismissed the proceeding for lacking reasonable prospects of success. However, Division 33.2 of the Federal Court Rules (introduced after the decision in Yao and currently in force) relates to appeals from the Tribunal, and rule 33.30, which appears in that Division, allows for a notice of objection to competency in appeals from the Tribunal pursuant to s 44 of the AAT Act: see Frugtniet v Tax Practitioners Board (2013) 136 ALD 324; [2013] FCA 752 at [16]-[18] per Murphy J.

24    Yao is not relevant to the proceedings before me.

25    Ms Heller’s claim that the notice of objection to competency is an attempt to dismiss the proceedings, rather than to secure the first respondent’s costs, appears to rely on the following comments of Perram J in Yao:

8.    … Thus the purpose of a notice of objection to competency is merely to put the applicant on notice of the objection and hence to put him at risk of an adverse costs order. It is plain that the notice is not a device by which an application to dismiss proceedings may be pursued…

26    However, it is an inevitable consequence that an incompetent proceeding will be dismissed. Perram J merely emphasised that there is a distinction between the two processes. A notice of objection to competency argues that the proceeding cannot be heard by the relevant court; for example, where the court does not have the jurisdiction to hear the proceeding. In comparison, an application to dismiss a proceeding argues that the proceeding should not be heard by the relevant court; for example, where the proceeding lacks reasonable prospects of success. It is clear that the Minister has properly objected to the competency of these proceedings.

Conclusion

27    Ms Heller’s appeal is incompetent, and should be dismissed. Costs should follow the event. I consider costs in the amount of $2,000 are reasonable and proportionate to the nature and complexity of the case (cf Bitek Pty Ltd v IConnect Pty Ltd (2012) 290 ALR 288; [2012] FCA 506 at [18]).

Associate:

Dated:    30 June 2020