Johal v Minister for Home Affairs

1. The application for an extension of time be dismissed.
2. The applicant pay the first respondent's costs of the application, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicant has applied for an extension of time in which to appeal the decision of the Federal Circuit Court of Australia ("FCC") dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the first respondent to refuse to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa ("Subclass 100 visa"). 2 An extension of time is required because the applicant was five days out of time in lodging an appeal. In an affidavit in support of the application for an extension of time, the applicant explained that he was unaware of the time limit for lodging an appeal given his limited knowledge of the Australian legal system. As the delay was not inordinate and the applicant provided an explanation as to why he did not file his notice of appeal within time, the real issue for determination on the application for an extension of time is whether the proposed grounds of appeal have sufficient merit to justify the extension of time. Unless the proposed grounds raise arguable points, there would be no utility in granting an extension of time in circumstances where the appeal was unlikely to succeed. 3 The applicant is an Indian citizen who applied for a Subclass 100 visa on the basis of his relationship with his then wife ("the sponsoring partner"), who is an Australian permanent resident. The visa was refused on the basis that the relationship had ceased by the time of the making of the decision and the applicant did not satisfy the criteria for the grant of the Subclass 100 visa. 4 The criteria for the grant of that visa are contained in Pt 100 of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). Relevantly those criteria include that at the time of the decision the applicant is the spouse or de facto partner of the sponsoring partner: cll 100.221(2)(b), 100.221 (2A(b)), unless certain circumstances exist. Those circumstances include that the applicant has suffered family violence committed by the sponsoring partner: cl 100.221(4)(c). 5 Division 1.5 of Part 1 of the Regulations contains special provisions relating to family violence. Regulation 1.21 defines "relevant family violence" to mean, relevantly, conduct, whether actual or threatened, towards the alleged victim that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety. By reg 1.22, a reference in the Regulations to a person having suffered family violence is a reference to a person being taken, under reg 1.23, to have suffered family violence. Regulation 1.23 draws a distinction between family violence that has been determined judicially and a non-judicially determined claim of family violence. By reg 1.23(9)(c), an application for a visa is taken to include a non-judicially determined claim of family violence if: the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that: (i) the alleged victim has suffered relevant family violence; and (ii) the alleged perpetrator committed that relevant family violence. 6 Regulation 1.24 specifies the evidence that is required to support a claim under reg 1.23(9)(c) as: (a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and (b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph. 7 Regulation 1.25 sets out the information which is required to be set out in a statutory declaration for the purposes of reg 1.24. 8 Instrument IMMI 12/116 dated 22 November 2012 specifies the requisite type and number of items of evidence required for the purposes of reg 1.24(b) and the type of detail which must be provided. 9 Before the Tribunal, the applicant claimed that he had been the victim of family violence perpetrated by his former wife. The applicant did not claim that the family violence had been judicially determined and provided no evidence of such an order. Nor did he provide evidence as required by reg 1.24 to demonstrate a non-judicially determined claim of family violence. In particular, the applicant had not provided a police record or report of any kind or any evidence that he had seen a doctor, psychologist or social worker in respect of his claim (as specified in IMMI 12/116). As there was no evidence before the Tribunal that was capable of satisfying the requirements of regs 1.23 to 1.25, or IMMI 12/116, the Tribunal affirmed the decision of the delegate not to grant the applicant a Subclass 100 visa. The primary judge found no jurisdictional error in the decision of the Tribunal. 10 The first proposed ground of appeal is that the FCC erred in law by failing properly and/or adequately to investigate and assess the claims of the applicant that he was the subject of family violence. That ground has no reasonable prospects of success. First, there was no legal duty on the FCC (or for that matter the Tribunal) to investigate and assess whether the applicant had been the victim of family violence. Secondly, as correctly held by the FCC, the Tribunal was bound to affirm the decision of the delegate not to grant a Subclass 100 visa to the applicant because the applicant had not furnished evidence satisfying the criteria for the grant of a Subclass 100 visa. 11 The second proposed ground of appeal is an allegation that the primary judge failed properly to consider the relevance of a certificate issued under s 375A of the Migration Act 1958 (Cth). Before the primary judge, the Minister conceded that the certificate was likely invalid. Procedural fairness required the Tribunal to disclose the existence of the certificate, but the breach of procedural fairness only amounted to jurisdictional error if the breach was material in the sense that it is realistically possible that a different decision might have been made but for the breach: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 at [2]. On the examination of the material subject to the certificate the primary judge found nothing to indicate that the applicant had been the alleged victim of family violence. The primary judge accordingly concluded that such material could have no bearing upon the Tribunal's merits review of the delegate's decision. In this application, the Minister provided the Court with the same material, a review of which confirmed that the material has no bearing on whether the applicant was a victim of family violence. It follows that the second proposed ground also lacks sufficient merit to warrant a grant of extension of time to appeal. 12 The third proposed ground is a claim of bias by the primary judge. The claim is a bald unparticularised assertion. When asked about the basis of the claim in oral submissions, the applicant informed the Court that it was the failure of the primary judge to accept his arguments. Bias is not demonstrated merely because the applicant's arguments were not accepted and mere dissatisfaction with a decision is not a basis for alleging bias. As there is nothing apparent which might provide some foundation for the allegation, this proposed ground also fails to raise an arguable ground. 13 Accordingly the application for an extension of time should be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.