De Abreu v Minister for Immigration and Border Protection

1. The appeal is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH J: 1 Before the Court is an appeal from orders made by the Federal Circuit Court on 23 February 2017. The Federal Circuit Court dismissed an application for review of a decision of the Migration Review Tribunal made on 21 May 2015. The Tribunal affirmed the decision of a delegate of the first respondent, Minister for Immigration and Border Protection, not to grant the appellant a Partner (Residence) visa (subclass 801). 2 The appellant was born in Brazil in 1989. She had a son in October 2006. 3 On 3 September 2009, the appellant arrived in Australia alone on a Prospective Marriage visa (subclass 300). She married the sponsor in Sydney in May 2010. 4 On 26 October 2010, the appellant was granted a Temporary Partner visa (subclass 820). In July 2013 and January 2014 the Department invited the appellant to provide further documents to support her application for a Partner (Residence) visa (subclass 801) that would require evidence of a continuing spousal relationship. The documents were not produced. Consequently, on 25 February 2014, a delegate of the first respondent refused to grant the appellant a visa. 5 In April 2014, the appellant applied to the Tribunal for a review of the delegate's decision. 6 In January 2015, the Department received a letter from the sponsor stating that his relationship with the appellant had broken down. 7 On 27 February 2015, the Tribunal conducted a hearing at which the appellant and the sponsor gave evidence that, despite the letter, they continued to live in a spousal relationship. 8 Following the hearing, on 3 March 2015, the Tribunal invited the appellant to comment on or respond to certain information that the Tribunal considered might be reason to affirm the delegate's decision. 9 On 13 March 2015, Brett Slater Solicitors, wrote to the Tribunal notifying that they had been appointed to represent the appellant. They sought and were granted an extension of time to 2 April 2015, within which to respond to the Tribunal's invitation. 10 On 2 April 2015, the appellant's solicitors wrote to the Tribunal indicating that the appellant was no longer in a spousal relationship with the sponsor. The letter continued: The applicant is at the appropriate time and after having had a reasonable opportunity to secure an appropriate court order or agreement, entitled to have her review application assessed by reference to this alternative in the regulations: (6) An applicant meets the requirement of this subclause if: (a) the applicant is the holder of a Subclass 820 visa; and (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and sponsoring partner has ceased; and (c) either or both of the following circumstances applies: (i) either or both the following: (A) the applicant; (B) a dependent child of the sponsoring partner or of the applicant or of both of them; has suffered family violence committed by the sponsoring partner; (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 partner; (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. [Emphasis added.] 11 The letter concluded foreshadowing a request for an adjournment as follows: The applicant as such has important rights under Part VII of the Family Law Act 1975 in connection with some of the matters set out in subparagraph (6)(c)(ii) in Part 801 of the Migration Regulations 1994. It may prove to be that she will be able to secure from the sponsor a relevant agreement without pursing a court application to a conclusion, but that is of course not something she can predict or control. She has since instructing us as a matter of caution commenced a process to make an application through the courts to obtain an order which will meet those requirements. It is considered to be likely to take some time before that court application is resolved. To that end, we are instructed to seek sufficient additional time in order to furnish the Tribunal with the relevant evidence once the court proceedings have been decided if there is no prior agreement. 12 On the same day, 2 April 2015, the appellant commenced proceedings in the Federal Circuit Court against the sponsor seeking maintenance for her son. 13 On 29 April 2015, the solicitors for the appellant wrote to the Tribunal seeking an adjournment of the hearing from the scheduled date of 7 May 2015 for one week until 14 May 2015 to allow time for the sponsor to seek advice and respond to the maintenance application served on him. On 30 April 2015, the Tribunal advised the appellant that the hearing would be adjourned until 14 May 2015, in accordance with the request. 14 On 14 May 2015, the Tribunal conducted a further hearing at which the appellant gave evidence concerning the application for maintenance in the Federal Circuit Court against the sponsor. The appellant's evidence was described in the Tribunal decision as follows: 56. The applicant's son is eight years old and lives with his paternal grandmother in Brazil. She is not sure if her son's biological father is living in the household and said that she does not have a good relationship with him. The applicant speaks with her son every week or two by telephone and also speaks to his paternal grandmother. She is not sending any money to support her son at present but he is being cared for by his paternal grandmother. When the applicant was working she sent money to her son when she could afford it. 57. The sponsor sent money to Brazil to assist the applicant's son on three or four occasions. It was not a regular pattern; he just sent money when her son was ill or had additional expenses. The sponsor has met her son on three occasions but has never lived with him in Brazil. They stayed together once in Brazil at a beach house when they were there on holiday. The sponsor has spoken with her son a few times by Skype but has not had contact with him since the parties separated. 58. The Tribunal asked the applicant about the maintenance figure of $1,300 referred to in the application to the Federal Circuit Court. She said that that figure represented her son's annual living costs in Brazil. She has never discussed that figure with the sponsor and he told her that he has no obligation to provide for her son because he is not the child's biological father. When they were in Brazil the sponsor told the applicant and her son's paternal grandmother that he would assist with expenses when the applicant moved to Australia. He said that before the applicant migrated to Australia. 59. As far as the applicant is aware, the sponsor has not responded to the court documents served on him. The Tribunal asked the applicant why she had waited until after the first hearing to initiate the action in the Federal Circuit Court. She said that the sponsor had always had access to the visa and took care of it; he knew about those things. The applicant said that she last spoke with her sponsor around two weeks ago, although she had contact with him yesterday on Facebook. She still regards the sponsor as a friend and they speak occasionally. He has not indicated that he will consent with the orders, but said that he has received the paperwork and was going to organise a lawyer to take care of it. 60. The Tribunal invited the applicant's migration agent to make submissions about why it should further adjourn making its decision given there was no certainty about when the litigation would be finalised. The applicant's migration agent said that they had been led to believe that the sponsor might reach some sort of agreement with the applicant. She agreed that no order had been made and there is currently no certainty about when the matter will be determined. The Tribunal noted that the litigation appeared to be a delay tactic and that it could be argued that the applicant's circumstances were being manufactured to fit within the relevant criteria. The applicant's migration agent said that that was a matter for the court to determine. She said that there was an element of control by the sponsor and that the applicant needed her own independent legal advice. She has made her decisions accordingly. They were going to look into the option of expediting the court proceedings, but were led to believe that the sponsor may consent to the agreement. 15 The Tribunal refused to adjourn the application and stated: 74. The applicant's migration agent has submitted documents to the Tribunal which indicate that the applicant initiated action in the Federal Circuit Court on 2 April 2015 seeking maintenance from the sponsor for her son. The matter is listed for 24 June 2015, but there is no certainty that the matter will be heard and finally determined on that date. The applicant's representative conceded in his written submissions prior to the second hearing that the court proceedings may take some time. At the second hearing the applicant's representative acknowledged that there were no orders currently in place, the sponsor has not consented to orders being made for the maintenance of the applicant's son and there is no certainty about when any orders may be made by the court. 75. The Tribunal has carefully considered the request to further adjourn to enable the Federal Circuit Court proceedings to be finalised. The Tribunal notes the evidence before it that: • The applicant's son is not the biological child of the sponsor; • He is a citizen of Brazil and has never visited or lived in Australia; • The applicant's son resides with, and is financially supported by, his paternal grandmother and possibly his biological father; • The sponsor has never lived with the applicant's son is Brazil, although they have stayed together at a beach house on one occasion; • The sponsor has had sporadic contact with the applicant's son by telephone, and • The sponsor has provided intermittent financial assistance on three or four occasions to the applicant's son in response to a particular need, such as to purchase medication at times of illness. 76. The Tribunal is unable to speculate on the outcome of the application lodged with the Federal Circuit Court on 2 April 2015. Nevertheless, it considers it far from certain that the orders sought will be granted in the absence of the sponsor's consent. 77. As noted above, the Tribunal has adjourned on two occasions at the request of the applicant's representative after he was engaged by the applicant after the first hearing to enable him to fully consider the documents and listen to the audio record of the hearing. The evidence available to the Tribunal indicates that the sponsor intends to contest the proceeding lodged by the applicant. Consequently, those proceedings may take a protracted period to be finally determined. The Tribunal has taken into account that the applicant lodged the proceedings after the second hearing. On her evidence this was almost two years after the parties' relationship broke down and around four months after the applicant moved into separate accommodation. She could not satisfactorily explain the delay. 78. The Tribunal has considered the principles outlined in the leading authority on postponing or adjourning; MIAC v Li [2003] HCA 18 (French CJ, Hayne, Kiefel, Bell and Gageler JJ, 8 May 2013). The Tribunal has also considered the Federal Circuit Court case of Thapaliya v MIAC [2013] FCCA 456 (Emmett J, 5 June 2013) at [31] to [32]. In the latter case Emmett J distinguished MIAC v Li on the basis that there was no evidence to suggest that a satisfactory IELTS test score was 'just around the corner'. The Tribunal has also taken into account the Federal Court case of Ortiz v MIAC [2011] FCA 1498 (Logan J, 22 December 2011) and the Federal Circuit Court case of Ortiz v MIBP [2014] FCCA 2994 (Howard J, 23 December 2014); the first of which deals with a request for an adjournment in the circumstances where the applicant was awaiting a determination of proceedings in the Family Court of Australia relating to a parenting order which would enable him to meet the requirements of the regulations. While there are some similarities between Ortiz v MIAC and the circumstances of this case, the facts are distinguishable. In this case there is no dispute here that the applicant's son is not the biological child of the sponsor and he is a citizen of Brazil, residing in Brazil. 79. After taking into account its statutory objectives, the ostensible purpose of the provision in question and the lack of certainty about when the Federal Circuit Court proceedings may be finalised, the Tribunal was not prepared to further adjourn until those proceedings could be finally heard and determined. 16 On 23 June 2015, the appellant filed an application for review of the decision of the Tribunal in the Federal Circuit Court asserting that the Tribunal had fallen into jurisdictional error by refusing to adjourn the application in view of the commencement of the maintenance proceeding. 17 On 23 February 2015, the Federal Circuit Court dismissed the application for review. The Federal Circuit Court held that the Tribunal carefully considered the relevant matters relating to whether the adjournment should be granted. Unlike in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) where there was evidence that the adjournment would bear fruit for the appellant, in this case there was considerable uncertainty about the result of the maintenance proceeding. Further, the Federal Circuit Court held the Tribunal was correct that Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 was distinguishable because in that case the Tribunal misapprehended the nature of the parallel proceedings whereas the Tribunal in this case did not. In this case it was open to the Tribunal to doubt the appellant's explanation for delay in bringing the maintenance proceeding in the context of the Tribunal's finding that the appellant was not a witness of truth having asserted that there was a spousal relationship in existence at a time when there was no such relationship in existence. The Federal Circuit Court held that the decision of the Tribunal did not lack an intelligible justification, was not unreasonable or illogical. 18 On 15 March 2017, the appellant filed a notice of appeal in this Court from the orders made by the Federal Circuit Court. 19 In oral submissions, counsel for the appellant formulated the grounds of appeal somewhat differently to the way in which they were articulated in the notice of appeal. In oral submissions the grounds were explained as follows: So the complaint of the applicant is that, in making its decision, the tribunal has erred and that can be characterised either as giving disproportionate weight or weight that was more than reasonably necessary to certain factors. They being the uncertainty of the outcome of the Federal Circuit Court proceeding, the fact of previous adjournments, the time which the Federal Circuit Court proceedings would take, and the delay in commencing those proceedings. Furthermore, the tribunal failed to give adequate weight to mandatory obligations, the obligation of the tribunal to reach the correct and preferable decision, the obligation of the tribunal to afford the applicant an opportunity to present her case, the obligation or the intimate connection between the criteria the tribunal was considering and the need for an applicant to satisfy it by commencing court proceedings and obtaining an order. 20 Section 353(1) of the Migration Act 1958 (Cth) (the Act) provides: The Tribunal shall, in carrying out its function under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. 21 Section 360(1) of the Act provides as follows: The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 22 Section 363(1)(b) of the Act provides as follows: For the purpose of the review of a decision, the Tribunal may: … (b) adjourn the review from time to time. 23 The ground of appeal explained in the first paragraph of the oral submission extracted at [19] of these reasons for judgment drew on the analysis of unreasonableness made by the plurality in Li (Hayne, Kiefel and Bell JJ) at [74] as follows: In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight - more than was reasonably necessary - to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. … [Footnote omitted.] 24 On the specific question of the relevance of delay, the appellant drew attention to the circumstances in Li and what the plurality said about them at [79] - [80] as follows: 79. The submission misapprehends the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it. The discussion of the forthcoming second skills assessment during the hearing on 18 December 2009, and the subsequent request for an adjournment of the Tribunal's review while TRA reviewed the second skills assessment, must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s 360, but it does not appear that it did so. 80. The decision to refuse the adjournment request was explained by the Tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5. [Footnotes omitted.] 25 In respect of the second paragraph of the oral submission extracted at [19] of these reasons for judgment, the appellant relied on two passages from Singh as follows: 76. There was no evidence about any factual reason why the Tribunal needed to make a decision in early January 2013. There was no prejudice to anyone from a short adjournment of the review, but there was significant and inevitable prejudice to the first respondent if the adjournment were refused. His application for review would be doomed to failure. The Minister accepted that the refusal by the Tribunal to adjourn was not legitimately affected by policies of which the Court has no experience. 77. If a proportionality analysis were undertaken (cf Li 297 ALR 225; [2013] HCA 18 at [30], [74]), it could be said that the exercise of power to refuse a short adjournment in these circumstances was disproportionate to the Tribunal's conduct of the review to that point, to what was at stake for the first respondent, and what he might reasonably have hoped to secure through a re-mark. 26 Counsel for the appellant properly referred the Court to some of the principles discussed in other cases involving challenges to decisions refusing to adjourn Tribunal hearings. A note of caution should be sounded in view of the increasing number of such cases coming before the Court. Decisions to adjourn or not have always been regarded as the classical example of discretionary decision making. Whilst the consequence of a refusal of an adjournment may be as final and grave as the rejection of an application on the merits, because of the width of the discretion exercised by the decision maker in matters of adjournment, it has been difficult to establish that the refusal of an adjournment involved jurisdictional error. Li demonstrates that in some cases jurisdictional error may be established, but the case was decided on its own facts. There is little value in such cases in arguing from apparent factual similarities. Each case must be considered on its own facts. The interaction of circumstances in one case is unlikely to be sufficiently similar to be a useful guide in others. In that respect the present case is a good example. 27 The appellant relied on certain alleged factual similarities between the present case and, Li, Singh, and Ortiz, which, taken on their own, might seem persuasive, but seen in the full collection of circumstances do not amount to any real assistance in the determination of the present case. 28 Thus, the appellant argued that disproportionate weight was placed on the likely delay in the completion of the maintenance proceeding, particularly in view of the appellant proposing to report the progress of the proceeding to the Tribunal. The appellant contended that the visa condition in question contemplated the need for such proceeding and, as the delay was not the fault of the appellant, the Tribunal placed too much weight on this factor. However, the factor cannot be seen separately from the other matters taken into account by the Tribunal. 29 The Tribunal came to the view that the outcome of the maintenance proceeding was uncertain and that the appellant had delayed in pursuing the maintenance proceeding. The appellant contended that the Tribunal placed too much weight on these factors also. 30 As to the likely outcome of the maintenance proceeding, the Tribunal expressly refrained from speculating what the outcome would be. It did, however, make an assessment of the strength of the case for maintenance. That was a relevant factor. If a case is clearly hopeless there would be little justification for an adjournment. The Tribunal set out the evidence relevant to the maintenance claim and assessed the chances of success as far from certain. 31 Then, as to the delay in commencing the proceeding, the Tribunal was not satisfied with the appellant's explanation. The Tribunal had found the appellant had deliberately lied to the Tribunal about her spousal relationship. The Tribunal did not regard the appellant as a credible witness. The Tribunal was thus entitled to reject the appellant's explanation for the delay in bringing the maintenance proceeding and to view the timing of the commencement of the proceeding after the second Tribunal hearing as indicative of an attempt to use the maintenance proceeding merely as an instrument to delay the proceeding before the Tribunal. The Tribunal provided a number of reasons for that conclusion including that the relationship between the appellant and the sponsor had broken down two years before, that is to say, there had been plenty of opportunity to institute the maintenance proceeding beforehand. Counsel for the appellant contended that the timing of the commencement of the proceeding was objectively verified by reference to the appointment by the appellant of a solicitor for the first time. It is not clear that this submission was put to the Tribunal. In any event, the factor is not conclusive. 32 The Tribunal referred to the previous adjournments of the hearing which it had granted to the appellant. The appellant contended that the previous adjournments were not relevant to the decision to adjourn on this occasion. However, the reference to the past adjournments was simply a description of the factual background of the proceeding. It was not part of the reasoning to the decision to refuse the adjournment. 33 Thus, the Tribunal was entitled, on the facts of the case which it found, to come to the view that the maintenance proceeding was commenced as a device to delay the proceeding in the Tribunal and that it was far from certain that the maintenance proceeding would succeed. Those were rational factors on which to base the refusal of the adjournment. Notwithstanding that the refusal would mean that the application for a visa could not succeed, those were intelligible justifications for the decision. The Tribunal did not give disproportionate weight to the uncertainty of the outcome of the maintenance proceeding, to the delay in the commencement of the maintenance proceeding, or to the length of time it may take to finalise the maintenance proceeding. They were also answers to the grounds articulated in the second paragraph of the submissions extracted at [19] of these reasons for judgment. 34 It follows that the appeal is dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.