Haxhiu v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant has applied to the Court pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") to review the decision of the Migration Review Tribunal ("the Tribunal") handed down on 30 November 1999 whereby the Tribunal affirmed the decision of the delegate of the respondent ("the Minister") to refuse an Extended Eligibility (Temporary) (Class TK) Visa, subclass 820 and a General (Residence) (Class AS) Visa, subclass 801. The applicant was not present at the handing down of the decision. 2 On 17 July 2002 the applicant filed an application for an order of review with the Court. The grounds of the application were: "the applicant believe the Tribunal member made error in his decision. The reasons are,

• The marriage was genuan [sic]
• More than one year living together." 3 As the application was filed in the Court on 17 July 2002, it is to be determined by reference to the provisions of the Act as they were amended by the Migration Legislation (Amendment Judicial Review) Act 2001 (Cth) ("the 2001 Act"). 4 On 24 July 2002 the Minister filed a notice of appearance. On 3 September 2002 the Minister filed a notice of objection to competency, pursuant to the provisions of O 54B r3 of the Federal Court Rules in which he objected to the jurisdiction of the Court to hear the application on the ground that, under s 477 of the 2001 Act, the application was made to the Court out of time. The notice of objection to competency was filed out of time as it was required by O 54B r3 to be filed within fourteen days after service of the application on the Minister. At a directions hearing on 4 September 2002 I adjourned the Minister's application for leave to file the notice of objection to competency out of time to the hearing of the application. 5 The applicant, a male of Albanian nationality, arrived in Australia on 19 November 1994 on a Visitor visa which was valid for three months. The visa was extended to 19 November 1995. The applicant met the nominator in May 1995 and they were married on 21 October 1995. The applicant applied to remain permanently in Australia on 17 November 1995 on spouse grounds and his application for a General Residence 820 and 821 visa classes was refused. His application to the Migration Internal Review Office was refused on 6 January 1998. 6 The nominator was interviewed by a departmental officer on 17 February 1997 when she indicated that the applicant had left her and that she did not know his whereabouts. The Tribunal noted that in the applicant's application for review the nominator stated that she believed that she and her husband had loved each other despite the fact that they were separated for eight months and that she believed that their marriage was back on track and that they were happy together. The applicant informed the Tribunal that the marriage was in difficulties for a short time because of the nominator's gambling addiction and the consequent financial difficulties that they experienced but that they were back together again and were in a happy and genuine long‑term relationship. However, at the hearing before the Tribunal the applicant stated that, while the nominator and the applicant resumed contact after eight months of separation, they continued to live separately. Both the nominator and the applicant told the Tribunal that financial difficulties were the reason for the break up of the marriage. 7 Subclass 820.211(2) in Sch 2 to the Migration Regulations 1994 provides that, relevantly, the following criteria were required to be satisfied at the time of the applicant's application for the visa: "(a) the applicant is the spouse of an Australian citizen …; and (b) … (c) the applicant is nominated by that Australian citizen …" 8 The term "spouse" as used in cl 820.211 and subclass 820.211(2) was relevantly defined by reg 1.15A. It provided that the person was the "spouse" of another person if: "(a) the two persons are … married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) [the respondent] is satisfied that: (i) the two persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between the two persons is genuine and continuing; and (c) [the respondent] is satisfied that the two persons are: (i) living together; or (ii) not living separately and apart on a permanent basis." 9 The Tribunal found that, while the applicant and the nominator were validly married under Australian law, there was no evidence of a genuine continuing relationship between them. The Tribunal noted their admission that they had not lived together since February 1997. Accordingly the Tribunal found that the applicant did not satisfy the criteria set out in subclass 820.211(2)(a) at the time of the application. 10 Subclass 820.221 sets out the criteria which a visa applicant must satisfy at the date of the decision. Subclass 820.221(1)(a) relevantly provided that it was a criterion that the applicant continued to meet the requirements referred to in subclass 820.211(2) or (3). As the applicant and the nominator were not continuing to live in a marriage relationship the Tribunal found that the applicant did not satisfy the requirements of subclass 820.211(1)(a). 11 In order to meet the requirements of subclass 801 the applicant was required to satisfy the criteria set out in subclass 801.211 at the time of decision. These criteria included that the applicant be the holder of a subclass 820 visa. As the applicant did not hold the subclass 820 visa he was unable to satisfy the requirements of subclass 801.211. The Tribunal noted that the applicant did not claim to meet, nor was there any evidence that he could meet, the criteria for subclasses 804, 805, 806, 814 or 832. 12 The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visas sought in his application and it affirmed the decision of the delegate of the Minister to refuse the visas sought by the applicant. 13 The decision of the Tribunal was handed down on 30 November 1999. The applicant did not attend the handing down of the decision. The Tribunal advised the applicant of its decision by letter dated 30 November 1999 which was addressed to the applicant at "2/17 Kingsville Street, West Footscray, Vic, 3012". The letter enclosing the decision was returned to the Tribunal on or about 4 February 2000. On that day an officer of the Tribunal ascertained that correspondence had also been sent to the applicant by the Tribunal to an address at 106 Power Street, St Albans. The decision was sent by the Tribunal to the applicant in an envelope addressed to 106 Power Street, St Albans on 4 February 2000. 14 The applicant said that he received the decision in February 2000 in an envelope which was delivered to him at 106 Power Street, St Albans. His explanation as to why he did not file his application for review before 17 July 2002 was that he did not read or write English, that he had financial difficulty with solicitors and had no income so that he could not obtain legal representation. 15 The Minister required leave to rely upon the notice of objection to competency as it was filed out of time. In the circumstances I am disposed to grant the Minister that leave as the notice was filed well before trial and the applicant has had more than two months notice of that objection in order to prepare to meet it. 16 I am satisfied that the application is not competent as it was filed well out of the time provided for the filing of such application by s 477 of the 2001 Act. By virtue of s 477 of the 2001 Act an application to the Court for review pursuant to s 39B of the Judiciary Act 1903 (Cth), which I take to be the nature and character of the present application although it is not expressed as such, must be filed within twenty‑eight days of notification of the relevant decision. Section 477(1) provides: "An application to the Federal Court under section 39B of the Judiciary Act 1903 for: (a) a writ of mandamus, prohibition or certiorari; or (b) an injunction or a declaration; in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision." Section 368B(6) of the Act, as it applied on 30 November 1999, provided: "If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 368(1). The copy must be given to the applicant: (a) within14days after the day on which the decision is handed down; and (b) by one of the methods specified in section 379A." Section 379A(1) of the Act provided that the written statement setting out the decision of the Tribunal is taken to be duly given to an applicant for review if: "A document specified in subsection (3) is taken to be duly given to an applicant for review if: (a) the document is sent (physically, electronically or otherwise) to: (i) the last address for service provided by the applicant in connection with his or her application for review; or (ii) the last residential address provided by the applicant in connection with his or her application for review; and (b) the Tribunal has a receipt or other evidence indicating the date of dispatch." 17 Accordingly notification of the decision was given to the applicant in December 1999 for the purposes of the Act, but at the latest on or about 4 February 2000. It follows that in order to invoke the jurisdiction of the Court, the applicant was required to file his application for review by 4 March 2000 or thereabouts. He did not do so. This position applied under s 478(1)(b) of the Act before 2 October 2001 and under s 477 of the 2001 Act after 2 October 2001. 18 I am satisfied that the Court has no jurisdiction to consider an application filed outside the twenty‑eight day period. Section 477 is substantially identical in wording to the former s 478(1)(b) of the Act and decisions of the Court had laid down authoritatively that the Court had no jurisdiction to entertain an application filed outside the twenty‑eight day period specified by the section: Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995; Sahak v Minister for Immigration and Multicultural Affairs [2002] FCAFC 215. 19 On the evidence before me, the decision was given by the Tribunal to the applicant on or about 30 November 1999 or alternatively at the latest on or about 4 February 2000. The address at 2/17 Kingsville Street, West Footscray was the last address for service notified to the Tribunal by the applicant as at 30 November 1999. However, even if the re‑sending of the returned letter and decision on 4 February 2000 is found to be the appropriate date for service, the applicant is still out of time. The address at 106 Power Street, St Albans was an address to which the Tribunal had previously sent letters to the applicant to which he had responded. For example, the Tribunal had sent a letter to the applicant on 22 September 1999 to the St Albans address and the applicant had replied by letter dated 18 October 1999 which was received by the Tribunal on 22 October 1999 and which showed the applicant's address at 106 Power Street, St Albans. Further, when the Tribunal wrote to the applicant on 27 October 1999 in a letter addressed to 106 Power Street, St Albans notifying the applicant of the date and time of the hearing before it on 11 November 1999, the applicant attended the hearing. In any event the applicant acknowledged receiving the decision in February 2000. 20 It follows therefore that I must uphold the notice of objection to competency and dismiss the application. 21 In any event, even if I had jurisdiction to hear and determine the application I would have dismissed the application as the Tribunal did not commit any error of law in reaching the conclusions and making the findings which it did. In short, the Tribunal found that the applicant did not satisfy the criteria for the grant of the visas either at the time of the lodging of the application or at the time of the Tribunal's decision. 22 The Tribunal's decision is a "privative clause decision" for the purposes of s 474(1) of the 2001 Act. Adopting the principles set out by Dixon J in R v Hickman; Ex parte Fox (1945) 70 CLR 598 at 616 ("Hickman"), it is clear that a decision to which a privative clause, such as s 474 applies, cannot be the subject of consideration or review other than in the limited circumstances where: · the decision‑maker did not make a bona fide attempt to exercise its power; · the decision did not relate to the subject‑matter of the relevant legislation; · the decision was not reasonably capable of reference to the power given to the decision‑maker. 23 That s 474 of the 2001 Act is to be approached and construed in this manner was recently accepted by all the members of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. 24 The ground of review raised by the applicant is not couched in terms which give rise to any of the three circumstances considered by Dixon J in Hickman which, in any event,cannot be satisfied. It is no more than a plea for a reconsideration of the matter on its merits. 25 The applicant raised a number of matters in argument in relation to his marriage. He said that he and the nominator, his wife, stayed together for more than one and a half years, that they had not had a divorce, that they had had problems because of financial difficulties, that they were not living together after one and a half years but would "come and go", that they still saw each other and wanted to be together. However the Tribunal found, on the admission of the applicant and the nominator at the hearing, that they had not lived together since February 1997 and that the applicant did not satisfy the criteria set out in subclause 820.211(2)(a) at the time of the application. It is not open to me to re‑visit these findings of the Tribunal and it is not open to me to review the merits of the Tribunal's findings. 26 The ground of review raised by the applicant does not raise any ground which could provide any basis for judicial review having regard to the effect of s 474 of the 2001 Act. It was open to the Tribunal to make the findings which it did and no error has been disclosed in the Tribunal's reasoning. 27 The notice of objection of competency will be upheld. The application will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.