Fisher v Minister for Immigration and Citizenship

INTRODUCTION 1 On 21 May 2007 the applicant filed an application for leave to appeal from an interlocutory judgment pronounced by Stone J on 30 April 2007 (Fisher v Minister for Immigration and Citizenship [2007] FCA 951). As more than seven days had passed since the date on which the interlocutory judgment was pronounced, the applicant requires an extension of time within which to apply for leave to appeal (O 52 r 10(2A) of the Federal Court Rules) as well as leave to appeal (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). The applicant, by his counsel, has indicated that, if he is granted an extension of time within which to apply for leave to appeal and leave to appeal, he will then seek leave to adduce further evidence on appeal (O 52 r 36) and additionally seek to satisfy the Court that it is expedient it the interests of justice that he be allowed to raise issues on his appeal that were not relied on before Stone J. 2 The interlocutory judgment pronounced by Stone J refused the applicant an extension of time under section 477A of the Migration Act 1958 (Cth) to seek relief in respect of a migration decision made by the Administrative Appeals Tribunal. The Tribunal affirmed the decision of a delegate of the Minister to cancel the applicant's visa on character grounds. Her Honour concluded on two independent bases that it was not in the interests of the administration of justice to extend the 28 day period within which the applicant could apply for judicial review of the decision of the Tribunal. First, her Honour was not satisfied that a proper explanation had been provided of why the application for judicial review had not been earlier made. Secondly, her Honour was not satisfied that there was any reasonable prospect of the application for judicial review succeeding. She was satisfied that the only claim of jurisdictional error advanced by the applicant was unsustainable. 3 The legal representative of the Minister has, I think appropriately, criticised the evidence adduced by the applicant to explain the delay in the making of the present applications. However, I do not base my judgment on the unsatisfactory nature of that evidence. 4 The principal basis upon which the applicant now asserts that the decision of the Tribunal is affected by jurisdictional error is that the Tribunal denied the applicant procedural fairness because it did not call a certain Ms Stephenson to give evidence before it. It is not suggested that the applicant requested or invited the Tribunal to take evidence from Ms Stephenson. 5 The material before the Tribunal indicated that Ms Stephenson had been the applicant's girlfriend for eight years and that they had lived together for four of those years with his parents. The reasons for decision of the Tribunal at [13] note that in about 1998 the applicant formed a relationship with Ms Stephenson and lived with her for about four years until about December 2001 when the relationship terminated by reason of Ms Stephenson becoming associated with another person. At [46] of its reasons for decision the Tribunal records: 'There is not any evidence from the Applicant or Ms Stephenson as to their current relationship. There is however evidence from relatives as to the relationship being still on foot. The Tribunal accepts that deportation of the Applicant may well cause hardship to Ms Stephenson even if it be that she and the Applicant have not resided together since 2001/2002.' 6 The applicant has sworn an affidavit in support of the present applications. He does not suggest in that affidavit that he is presently in a de facto relationship with Ms Stephenson and his evidence is equivocal as to the status of the relationship between them as at the date of the Tribunal hearing. His legal representative accepts that he is not presently in a de facto relationship with Ms Stephenson, although he has hinted at the possibility that the applicant and Ms Stephenson may resume their earlier relationship. This possibility is not addressed by the applicant in his affidavit. 7 The contention, only faintly advanced, that the Tribunal failed to give consideration to possible hardship to Ms Stephenson resulting from the cancellation of the applicant's visa is plainly without merit. The Tribunal accepted that the applicant's deportation might cause hardship to Ms Stephenson. 8 The contention of the applicant that the Tribunal was under an obligation in the circumstances to call Ms Stephenson to give evidence is also unmeritorious. The Tribunal has the power to call a witness to give evidence but is under no obligation to do so (Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908). 9 The applicant also, perhaps faintly, contended that he was denied procedural fairness because he was given only a 21 day period to respond to the notice of intention to cancel his visa. He placed reliance in this regard on Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. In that case Allsop J issued a writ of certiorari in respect of a decision of the Minister to cancel a visa where the visa holder was given only 14 days to put forward submissions as to why his visa should not be cancelled. 10 The present case is plainly distinguishable from Sales. First, as mentioned above, the applicant was given approximately 21 days to respond to the notice of intention to cancel his visa and he has not given evidence that this time proved inadequate. Secondly, and more importantly, the decision to cancel the applicant's visa was reviewed and affirmed by the Tribunal. The Minister's decision is Sales was not susceptible of review by the Tribunal. The decision of the delegate in this case is dated 1 June 2006. The application for review of the decision of the delegate is dated 7 June 2006. The Tribunal hearing with respect to that application was conducted on 31 July 2006 and the decision of the Tribunal is dated 18 August 2006. Understandably, no contention was advanced that the applicant did not have adequate time to prepare his case for presentation to the Tribunal. The powers of the Tribunal on review of the decision of the delegate render immaterial any deficiency in the notice of intention to cancel the applicant's visa. 11 In the circumstances I am not satisfied that, even were the applicant able to demonstrate that it would be expedient in the interests of justice to allow him to raise issues not relied upon before Stone J, he could satisfy a court that the decision of the Tribunal is affected by jurisdictional error. 12 The legal representative of the applicant has not suggested that any error affects the decision of Stone J. Rather it has been suggested that the applicant's then legal representative did not prosecute the applicant's case before Stone J in the way that it ought to have been prosecuted. It is unnecessary in the circumstances for me to express any view on the accuracy of that contention. 13 I am not satisfied that any injustice will be suffered by the applicant if leave is not granted to appeal from the judgment of Stone J. This is because, like her Honour, I am not satisfied that the decision of the Tribunal is affected by any jurisdictional error. 14 For the above reasons the application for an extension of time within which to apply for leave to appeal from the interlocutory judgment pronounced by Stone J on 30 April 2007 will be dismissed. As a consequence the application for leave to appeal will be dismissed as incompetent. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.